Filed 5/6/16
                          CERTIFIED FOR PUBLICATION




           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                           THIRD APPELLATE DISTRICT
                                       (Calaveras)
                                           ----




THE PEOPLE,                                                  C080099

               Plaintiff and Respondent,                (Super. Ct. Nos.
                                                     F2763, F2825, 11F5155)
        v.

TONY DALE JOHNSTON,

               Defendant and Appellant.




      APPEAL from a judgment of the Superior Court of Calaveras County, John E.
Martin, Judge. Affirmed with directions.


      Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and
Appellant.

      Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and
Michael A. Canzoneri, Deputy Attorneys General, for Plaintiff and Respondent.




                                            1
       In 2003, defendant Tony Dale Johnston entered guilty pleas to unlawful
possession of a firearm (case No. F2763), and to first degree burglary, unlawfully taking
or driving a vehicle, and arson of a vehicle (case No. F2825). The trial court sentenced
him to state prison for over six years in the two matters. In 2011, defendant entered
guilty pleas to possessing methamphetamine and receiving stolen property (case
No. 11F5155). The trial court sentenced him to a two-year state prison term.

       In May 2015, defendant filed a petition in propria persona to reduce these felony
convictions to misdemeanors (as well as a 1999 conviction for receiving stolen property
that is not pertinent to this appeal) pursuant to Penal Code section 1170.18.1 He asked
that the trial court “broadly and liberally” construe section 1170.18 to apply to all of these
offenses, even if they did not all “fi[t] squarely into [the] mold set forth in this act.” The
petition does not provide any further information about the circumstances underlying the
convictions. Defendant noted that he was presently serving an 11-year prison term for a
2014 conviction in a Tuolumne County case for criminal threats, and asserted that drugs
or alcohol had fueled all of his crimes, stemming from his bipolar disorder, hyperactivity,
and depression.

       The prosecution opposed reduction of the 2003 convictions because they were not
eligible offenses. It did not object to reduction of the 2011 methamphetamine conviction,
but stated the value of the property at issue in the other 2011 conviction was a vehicle
worth more than $950. The trial court denied relief for the facially ineligible offenses,
reduced the methamphetamine conviction to a misdemeanor, and after holding a hearing
(at which defendant appeared through counsel) denied relief on the other 2011 conviction
because it involved property valued at more than $950. Defendant appealed from the
adverse rulings in the three cases.


1 Undesignated statutory references are to the Penal Code.



                                               2
       Defendant challenges only the ruling denying relief as to his 2003 conviction for
unlawfully taking or driving a vehicle (case No. F2825). (A Feb. 2003 notice in the
record of case No. F2763 of a violation of probation indicates the vehicle was a 1995
Jeep Wrangler.) Defendant also notes that the trial court failed to issue an amended
abstract of judgment for the 2011 convictions (case No. 11F5155), a point the People
concede. We shall affirm the order and direct the trial court to issue a corrected abstract
of judgment to reflect the reduction of the drug conviction to a misdemeanor.

       We do not need to add any further facts to the introduction. We therefore proceed
to the Discussion.

                                      DISCUSSION

       This is not a novel issue. However, the California Supreme Court will be the only
voice on the question.2 As we await its word, we will adhere to our viewpoint that
unlawfully taking or driving a vehicle does not come within the ambit of section 1170.18,
and allow defendant to preserve the issue for further review.

       The initiative enacting section 1170.18 prospectively reduced three specific drug
possession offenses to misdemeanors (Health & Saf. Code, §§ 11350, 11357, 11377), as
well as forging or writing bad checks (§§ 473, 476a), receiving stolen property (§ 496),


2 The issue of whether section 1170.18 applies to the offense of unlawful taking or
driving a vehicle (Veh. Code, § 10851) because it is a lesser included offense of section
487, subdivision (d) is presently before our Supreme Court in People v. Ortiz, review
granted and holding for lead case, March 16, 2016, S232344; People v. Haywood, review
granted and holding for lead case, March 9, 2016, S232250; and People v. Page, review
granted January 27, 2016, S230793 [extension of time granted for answer brief]. In two
other cases, there have been grants of rehearing. (People v. Orozco (D067313, rehg.
granted Feb. 8, 2016); People v. Gomez (E062867, rehg. granted Jan. 11, 2016,
subsequent opn. not certified for pub.).) A recent case, which is not yet final (for which
reason we do not rely on it as precedent), is in accord with our analysis. (People v. Solis
(2016) 245 Cal.App.4th 1099 (Solis), petn. for review pending, petn. filed Apr. 27, 2016,
S234150.)


                                             3
and petty theft. It accomplished the latter with the addition of section 490.2, which now
defines “petty theft” as involving “money, labor, real or personal property” with a value
less than $950 “[n]otwithstanding Section 487” (which had specifically defined “[g]rand
theft” on the basis of value or type of property) “or any other provision of law defining
grand theft” (§ 490.2, subd. (a), italics added). The initiative additionally amended
section 666 (also called “petty theft with a prior”) to allow wobbler punishment for
recidivists who are otherwise disqualified from the reach of the initiative. Finally, it
added the new misdemeanor of “shoplifting” (§ 459.5). (See Voter Information Guide,
Gen. Elec. (Nov. 4, 2014) Official Title and Summary of Prop. 47, p. 34 (2014 Voter
Guide); see also id., text of Prop. 47, §§ 5–13, pp. 71–73.)

       In section 1170.18, the initiative provided a means of retrospective relief (for
defendants who are either serving a sentence or have completed a sentence for a prior
conviction) through a petition for resentencing if the prior conviction would have been a
misdemeanor “had this [initiative] been in effect at the time of the offense.” (§ 1170.18,
subds. (a) & (f).) As Vehicle Code section 10851 allowed and continues to allow for
sentencing either as a misdemeanor or a felony, a conviction for unlawful taking or
driving does not come within the plain language of this criterion. This undermines the
premise of defendant’s appeal, because it is accordingly illogical to construe one portion
of section 1170.18 as including a statute that under the express terms of section 1170.18
is not eligible for retrospective relief. This illogic is further demonstrated in section 666,
which lists unlawful taking or driving as a qualifying prior conviction separately from
either grand or petty theft, which would be surplusage if the references to theft in section
1170.18 are supposed to be construed as including Vehicle Code section 10851.3 We
therefore do not need to engage in any “construction.”


3 Solis is the first case to remark on this latter point (“Rule Against Surplusage”). (Solis,
supra, 245 Cal.App.4th at pp. 1110-1111.)

                                              4
       Furthermore, the reasoning underlying defendant’s construction of section 1170.18
is not persuasive. He cites to the general objectives of the framers of the initiative, and
the call therein for liberal construction of the statute. (See 2014 Voter Guide, supra, text
of Prop. 47, §§ 2, 18, pp. 70, 74.) Arguing that wrongfully taking or driving a vehicle
can be a lesser included offense of section 487 (a point we accept arguendo), defendant
then contends it would be illogical for the electorate to punish petty theft of a $950
vehicle as a misdemeanor while punishing the unlawful taking or driving of a $950
vehicle as a wobbler.4

       As we have recently explained, in the face of unambiguous statutory language 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.) This is true even where
legislation calls for “liberal construction.” (E.g., Foster v. Workers’ Comp. Appeals Bd.
(2008) 161 Cal.App.4th 1505, 1510 [workers’ compensation law].) The essence of
lawmaking is the choice of deciding to what extent a particular objective outweighs any
competing values, and a court in the guise of interpretation should not upset this balance
where it is spelled out in the text of a statute. (County of Sonoma, at p. 48.) A recent
case thus finds that liberal construction is not a basis to include attempted vehicular
burglary (§ 459), another offense that section 1170.18 unambiguously omits.5 (People v.
Acosta (2015) 242 Cal.App.4th 521, 526 (Acosta).)



4 Defendant also invokes In re Estrada (1965) 63 Cal.2d 740, which established the
principle that a legislative amendment reducing punishment yields an “inevitable”
intrinsic inference of retroactive application to all cases not yet final on appeal absent
some form of “saving clause” from which a court can find an intent for prospective
application. (Id. at pp. 744-745, 747-748.) This principle does not have any relevance in
the present context, there not being any express amendment of Vehicle Code section
10851.
5 However, section 459.5 does bring section 459 within its ambit. If the facts underlying
a previous conviction for felony second degree commercial burglary under section 459

                                              5
       The plain language of section 1170.18 selected only a few provisions of the Health
and Safety Code and the Penal Code as offenses to designate as misdemeanors from the
multitude of overlapping crimes. This careful parsing of related items invokes one of
those Latin phrases that courts love to brandish: “Expressio unius est exclusio alterius,”
under which the inclusion of only certain items in an associated group gives rise to a
strong inference of a deliberate legislative choice to exclude any items not mentioned,
absent a compelling indication of legislative intent to the contrary. (Strang v. Cabrol
(1984) 37 Cal.3d 720, 725; The Formula Inc. v. Superior Court (2008) 168 Cal.App.4th
1455, 1462-1463 [finding contrary legislative intent]; see 2A Singer & Singer, Sutherland
Statutes and Statutory Construction (7th ed. 2014) § 47:23, pp. 406-413, 423-424
(Sutherland).)

       The statute itself does not qualify its enumeration of the statutes with any general
language of inclusion (e.g., “such as” or “including”), nor can we discern any logical
reason for mentioning only these statutes if there was the intent to include others.
(2A Sutherland, supra, § 47:25, pp. 444-445.) Defendant does not identify evidence of
any contrary intent under which the drafters nonetheless intended the designated statutes
to be merely illustrative. The Attorney General’s summary of the initiative states that it
“[r]equires misdemeanor sentence[s] instead of felony for the following crimes when
amount involved is $950 or less: petty theft, receiving stolen property, and forging[ or]
writing bad checks,” with nary a word about unlawful taking/driving of a vehicle or
lesser included offenses. (2014 Voter Guide, supra, Official Title and Summary of Prop.
47, p. 34.) Vehicle Code section 10851 also does not appear anywhere in the exegesis of


involve the entry of a commercial establishment with the intent to commit larceny during
ordinary business hours, defendants are now entitled to petition for resentencing as a
misdemeanor under section 459.5 if the value of the property is under $950. (See In re
J.L. (2015) 242 Cal.App.4th 1108, 1112; People v. Sherow (2015) 239 Cal.App.4th 875,
879 (Sherow); see also People v. Contreras (2015) 237 Cal.App.4th 868, 892.)


                                             6
the Legislative Analyst when it lists the offenses for which sentences would be
prospectively reduced (2014 Voter Guide, supra, analysis of Prop. 47 by Legis. Analyst,
pp. 35-36), nor in the supporting and opposing arguments (id., argument in favor of Prop.
47, p. 38; id., argument against Prop. 47, p. 39); the only vehicle-related reference
appears in the opposition, which cites a reduction in punishment for carjacking as a basis
to vote no (ibid.). Therefore, the legislative history is devoid of a desire to include
additional offenses through the vehicle of lesser included or related offenses, and it would
be a fraud upon the electorate for a court to extend the reach of the initiative beyond what
was expressly represented at the time.

       This leaves defendant’s reliance on section 490.2. It is true the operation of
section 490.2 brings a host of unspecified statutes defining grand theft within its ambit
prospectively (and thus retrospectively). However, Vehicle Code section 10851 does not
appear explicitly in section 490.2 (as does § 487), nor does its text purport to define the
taking of a vehicle as grand theft within the catchall language of section 490.2. In
addition, the statute embraces taking or driving whether or not there was an intent to
steal. (People v. Garza (2005) 35 Cal.4th 866, 871.) In Acosta the court of appeal finds
that section 490.2 does not apply to another statute (attempted vehicular burglary) that
does not necessarily involve theft. (Acosta, supra, 242 Cal.App.4th at p. 526.) As a
result, unlawful taking or driving cannot be swept into the ambit of section 1170.18 by
this route.

       Finally, even if section 487 operated in the same manner as section 459.5, and
permitted a violation of Vehicle Code section 10851 to be reclassified as a misdemeanor
violation of section 487 if the unlawful taking of a $950 car underlay the prior conviction,
it would still be the burden of defendant to have produced facts establishing this in his
petition—assuming that there is some way in which he can establish that his conviction
was for a car theft when that was not a necessary element. (People v. Rivas-Colon (2015)


                                              7
241 Cal.App.4th 444, 448-450; Sherow, supra, 239 Cal.App.4th at pp. 879-880.)
Defendant’s petition failed to satisfy this burden despite defendant presumably being
aware of what he did. (See Sherow, at p. 880 [proper petition could contain at least
declaration from defendant regarding circumstances of offense].) Therefore, the trial
court did not err in denying relief on this conviction.

       Defendant thus resorts to the usually unprofitable claim that this dichotomy in
punishment results in a violation of his constitutional right to equal protection under the
law. “[N]either the existence of two identical criminal statutes prescribing different
levels of punishments, nor the exercise of a prosecutor’s discretion in charging under one
statute and not the other, violates equal protection principles.” (People v. Wilkinson
(2004) 33 Cal.4th 821, 838.) Specifically, the disparity between the former punishment
for “grand theft auto” and unlawful taking or driving is not a basis for finding a violation.
(People v. Romo (1975) 14 Cal.3d 189, 197.) Even if we assume the two categories of
crimes are situated similarly, there is a rational basis for the distinction in treatment: The
electorate was not obligated to extend relief under the initiative to all similar conduct. It
could instead move in an incremental way, gauging the effects of this sea change in penal
law. Particularly given the insignificant numbers of vehicle thefts at issue in light of the
present vehicle prices, the electorate could conclude this would not work an injustice.
Finally, the electorate could expect a prosecutor to exercise discretion to charge an
unlawful taking or driving of a $950 vehicle as a misdemeanor. (Acosta, supra,
242 Cal.App.4th at pp. 527-528.) We therefore reject the argument.

                                      DISPOSITION

       The order disposing of defendant’s petition is affirmed. The trial court shall
prepare a corrected abstract of judgment to conform to its ruling on the 2011 convictions




                                              8
and forward it to the Department of Corrections and Rehabilitation. (CERTIFIED FOR
PUBLICATION)



                                                     BUTZ             , J.



We concur:



     NICHOLSON           , Acting P. J.



     DUARTE              , J.




                                          9
