Filed 4/10/18 P. v. Bunnell CA3
Opinion on remand from Supreme Court
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



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



THE PEOPLE,

Plaintiff and Respondent,

v.

ERIK LEE BUNNELL,

Defendant and Appellant.
C078376

(Super. Ct. Nos.
62-124734, 62-127934)

OPINION ON TRANSFER




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. 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 court erred in resentencing him to the same cumulative sentence after it reduced two other felony convictions to misdemeanors. We conclude the trial court erred in determining defendant was not eligible for resentencing for his violation of Vehicle Code section 10851; otherwise, 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 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.) 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 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 conclude the trial court erred in deeming defendant categorically ineligible for resentencing under Proposition 47 for his conviction for driving and taking a vehicle (Veh. Code, § 10851), but otherwise disagree with defendant’s contentions.
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 expressly 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. Initially, defendant relied 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. On transfer from the Supreme Court, he contends People v. Page (2017) 3 Cal.5th 1175 (Page) renders him eligible for resentencing on his conviction for violating Vehicle Code section 10851, and requests that we instruct the trial court to resentence him if he can establish on remand that the value of the vehicle stolen was under $950. The People argue the matter should be remanded so defendant may prove that his conviction was for vehicle theft and that the value of the vehicle was less than $950. We conclude that his conviction for violating Vehicle Code section 10851 may be eligible for resentencing, and remand the matter to the trial court to consider whether defendant should be resentenced pursuant to section 1170.18.
1.1 Vehicle Code Section 10851
Among the provisions newly added by Proposition 47 is section 490.2, which defines petty theft as “obtaining any property by theft where the value of the . . . property taken does not exceed nine hundred fifty dollars ($950),” and which is punishable as a misdemeanor. (§ 490.2, subd. (a); Page, supra, 3 Cal.5th at p. 1179.) Section 1170.18 expressly makes a person who would have been convicted of violating section 490.2 had it been in effect at the time of his offense eligible for resentencing. (§ 1170.18, subds. (a)-(b); Page, at p. 1179.) Defendant, however, was not convicted of violating section 490.2, but instead was convicted of violating Vehicle Code section 10851, which is not expressly listed in section 1170.18 and which remains punishable as a felony or a misdemeanor.
Nevertheless, Page concluded that a defendant with a conviction for violating Vehicle Code section 10851 is not “categorically ineligible” for resentencing pursuant to section 1170.18. (Page, supra, 3 Cal.5th at p. 1180.) Rather, Page reasoned that because someone could be convicted of violating Vehicle Code section 10851 for theft of a vehicle rather than for driving the vehicle after it has been taken or taking without the intent to steal, that person should be eligible for resentencing if he or she can show the vehicle is worth $950 or less because such a crime would fall within the definition of petty theft set forth in section 490.2. (Page, supra, at pp. 1180, 1183-1184, 1186-1187.) Accordingly, the trial court erred 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 based on its erroneous conclusion that defendant was categorically ineligible for resentencing on that conviction.
Defendant asks us to direct the trial court to resentence him if he proves on remand that the vehicle stolen was worth less than $950 and that his conviction was based on theft of the vehicle. We decline defendant’s invitation. For, even if defendant is eligible for resentencing, the trial court retains discretion to determine whether defendant should be resentenced or if he “would pose an unreasonable risk of danger to public safety.” (§ 1170.18, subd. (b).) We will not preclude the trial court from exercising its discretion in the first instance. Accordingly, we direct only that the trial court consider anew defendant’s petition for resentencing as to his conviction for a violation of Vehicle Code section 10851. On remand, it will be defendant’s burden to prove that his conviction was based on theft of the vehicle and that the vehicle was valued at $950 or less. (Page, supra, 3 Cal.5th at pp. 1188-1189; see People v. Romanowski (2017) 2 Cal.5th 903, 916 [placing burden on defendant to prove value of stolen property].)
1.2 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).) 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.)
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, 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 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.
DISPOSITION
We remand the matter to the trial court to permit defendant to present evidence that his conviction on count one was based on theft of the vehicle and of the value of the stolen vehicle, and for the trial court to consider whether to resentence defendant pursuant to Penal Code section 1170.18 for his conviction for violating Vehicle Code section 10851. The order appealed from is otherwise affirmed.


BUTZ , J.

We concur:


RAYE , P. J.


MAURO , J.