Filed 4/17/18 P. v. Washington CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT


THE PEOPLE,

Plaintiff and Respondent,

v.

BILLY ALLEN WASHINGTON,

Defendant and Appellant.
H045208
(Santa Clara County
Super. Ct. No. 123247)

I. INTRODUCTION
In 1988, defendant Billy Allen Washington pleaded guilty to felony receiving stolen property (Pen. Code, former § 496) among other counts. The record reflects that the property at issue was a motor scooter. Defendant was placed on probation with the term to run coterminous with a six-month jail sentence.
In 2017, defendant filed a petition in the trial court pursuant to section 1170.18, subdivision (f), which was enacted as part of Proposition 47. He requested that his conviction for receiving stolen property under former section 496 be redesignated as a misdemeanor. The court denied the petition after determining that defendant failed to show “that he would have been convicted under section 496 [(receiving stolen property)], even if section 496d [(receiving a stolen motor vehicle)] had also been in effect at the time” of his crime.
On appeal, defendant contends that his conviction for receiving stolen property (former § 496) is eligible for relief under section 1170.18, and that the trial court erred by concluding otherwise. The Attorney General concedes the error.
We find the Attorney General’s concession appropriate. For reasons that we will explain, we will reverse the trial court’s order and direct that defendant’s petition be granted.
II. BACKGROUND
In June 1988, defendant was driving a motor scooter that had been stolen. The police signaled for him to stop, but he failed to do so. A chase ensued with defendant weaving through traffic and a parking lot. Defendant eventually stopped the scooter and attempted to walk away. He resisted arrest and had an odor of alcohol on his breath. His blood-alcohol level was determined to be 0.13 percent.
A. Conviction for Receiving Stolen Property (Former § 496)
Defendant was charged by information with four counts, including in count 2, driving or taking a vehicle, a Yamaha motor scooter, without the owner’s consent (Veh. Code, § 10851, subd. (a)). On November 28, 1988, on motion of the prosecution, count 2 was amended to allege a violation of former section 496 (as amended by Stats. 1982, ch. 935, § 1), receiving stolen property. Defendant pleaded guilty to the amended count, and pleaded guilty to misdemeanor driving under the influence of alcohol (Veh. Code, § 23152, former subd. (a)) and misdemeanor resisting an officer (former § 148). He was placed on probation with the term to run coterminous with a six-month jail sentence. The remaining count was dismissed.
B. Proposition 47
In November 2014, voters approved Proposition 47, the Safe Neighborhoods and Schools Act. (People v. Page (2017) 3 Cal.5th 1175, 1179, 1181 (Page).) Proposition 47 “reduced the punishment for certain theft- and drug-related offenses, making them punishable as misdemeanors rather than felonies.” (Page, supra, at p. 1179.) Under Proposition 47, receiving stolen property valued at $950 or less is a misdemeanor if the defendant does not have a specified prior conviction. (§ 496, subd. (a).) Proposition 47 also added section 1170.18, which permits a defendant who has completed his or her sentence to file an application to have his or her felony conviction redesignated as a misdemeanor. (§ 1170.18, subds. (f) & (g).)
C. Defendant’s Two Petitions
In 2016, defendant filed his first petition to have his felony conviction for receiving stolen property (former § 496) redesignated as a misdemeanor. The prosecutor filed written opposition. The trial court denied the petition without prejudice because defendant did not establish that the value of the property was $950 or less.
In March 2017, defendant filed a second petition to have his felony conviction for receiving stolen property (former § 496) redesignated as a misdemeanor. This time, defendant included an excerpt from a document that had been filed years earlier by the prosecution. Specifically, the record reflects that the excerpt is from an October 1988 written opposition by the prosecution to defendant’s section 995 motion to dismiss. The excerpt describes some of the facts of the case and includes citations to the preliminary examination transcript. According to the excerpt, the owner of the Yamaha motor scooter testified at the preliminary examination that he bought the scooter new for almost $900.
The prosecutor filed written opposition to defendant’s second petition to redesignate his felony conviction as a misdemeanor, contending that a section “496d” conviction is “not eligible” for relief.
In a written order, the trial court – with a different judge presiding than the judge who had denied defendant’s first petition – set the matter for a hearing and sought further briefing from the parties. The court indicated that possession of a stolen vehicle under section 496d, which was enacted after defendant was convicted, is not eligible for redesignation as a misdemeanor under section 1170.18. The court asked the parties to address in written briefing whether “the intervening enactment of Penal Code §496d require[s] Defendant to show that he would still have been convicted under section 496, an eligible offense, even if [section 496d] had been in effect at the time.”
In supplemental briefing, defendant contended that the enactment of section 496d had no bearing on his case because he was not convicted under that statute. The prosecutor in supplemental briefing contended that section 496, subdivision (a) encompassed all types of stolen property while the later-enacted section 496d only encompassed certain types of stolen property, such as motor vehicles. The prosecutor argued that, upon the enactment of the later section 496d, “persons who were previously convicted of [s]ection 496[, subdivision] (a) for receiving stolen vehicles are deemed to have been convicted of [s]ection 496d through its implied repeal.” The prosecutor argued that because defendant “stands convicted under [s]ection 496d,” and because such a conviction is not eligible for redesignation as a misdemeanor under section 1170.18, defendant was not entitled to relief. The trial court held a hearing on the matter and then took the matter under submission.
D. The Trial Court’s Order
In a written order filed September 25, 2017, the court denied defendant’s second petition seeking redesignation of his conviction for receiving stolen property under former section 496. Relying on People v. Varner (2016) 3 Cal.App.5th 360 (Varner), the court determined that a conviction for receiving or possessing a stolen vehicle under section 496d is not subject to redesignation under section 1170.18. The court found that the “clear intent” of Proposition 47 was to exclude from relief a conviction for receiving or possessing a stolen vehicle, and that defendant’s conviction under former section 496 for receiving stolen property (a motor scooter) also “should not be subject to such relief.” The court stated that section 496d was “[t]he more specific section” added to the Penal Code 10 years later. According to the court, for defendant to show that he “would have been guilty of a misdemeanor under [Proposition 47] had [Proposition 47] been in effect at the time of the offense” (§ 1170.18, subd. (f)), he must establish “that he would have been convicted under section 496, even if section 496d had also been in effect at the time.” The court further stated: “The retrospective application of Prop 47 requires consideration in context, including all the sections amended, or omitted, as part of its enactment. Because possession of a stolen vehicle as encompassed in the 1988 version of section 496 is the very offense now defined in section 496d, he has not made that showing.”
III. DISCUSSION
Defendant contends that his conviction for receiving stolen property under former section 496 is eligible for relief under section 1170.18, and that the trial court erred by concluding otherwise. Defendant requests that the trial court’s order be reversed and that his conviction be redesignated as a misdemeanor.
The Attorney General concedes that a conviction under former section 496 is eligible for redesignation as a misdemeanor, and that the trial court erred by treating the conviction as a violation of section 496d. The Attorney General argues that the matter should be remanded to the trial court to reconsider defendant’s petition.
“The interpretation of a statute is subject to de novo review on appeal. [Citation.] ‘In interpreting a voter initiative like [Proposition 47], [the courts] 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 determining intent, we look first to the words themselves. [Citations.] When the language is clear and unambiguous, there is no need for construction. [Citations.] When the language is susceptible of more than one reasonable interpretation, however, we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part. [Citations.]’ [Citation.]” (People v. Perkins (2016) 244 Cal.App.4th 129, 136.)
Section 1170.18, subdivision (f) states, “A person who has completed his or her sentence for a conviction, whether by trial or plea, 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, may file an application . . . to have the felony conviction or convictions designated as misdemeanors.” (Italics added.) In this case, defendant was convicted of a felony violation of former section 496. Section 496, subdivision (a) was amended by Proposition 47 to state: “Every person who buys or receives any property that has been stolen . . . knowing the property to be so stolen . . . shall be punished by imprisonment . . . . However, if the value of the property does not exceed nine hundred fifty dollars ($950), the offense shall be a misdemeanor, . . . if such person has no prior convictions for [a specified offense].”
Whereas section 496 applies to receiving “any property” that has been stolen (§ 496, subd. (a); Stats. 1982, ch. 935, § 1), section 496d applies to receiving “any motor vehicle” that has been stolen (§ 496d, subd. (a)). The latter statute, section 496d, was added to the Penal Code in 1998 (Stats. 1998, ch. 710, § 1), approximately 10 years after defendant’s 1988 offense involving a stolen motor scooter and well after the judgment of his conviction became final. Section 496d was not amended by Proposition 47, and a felony conviction under section 496d is not eligible for resentencing under Proposition 47. (Varner, supra, 3 Cal.App.5th at p. 364.)
Whether defendant could have been convicted under section 496d had it been in effect at the time of his offense is not relevant to our analysis. Under the plain language of section 1170.18, the relevant consideration is whether defendant “would have been guilty of a misdemeanor under [Proposition 47] had [Proposition 47] been in effect at the time of the offense.” (§ 1170.18, subd. (f), italics added.) As defendant was convicted under section 496, an offense that is a misdemeanor under Proposition 47 for receiving stolen property of a specified value, defendant is eligible for relief. Nothing in section 1170.18 requires defendant to make an additional showing that he would not have been charged and convicted under some other statute that was not in effect at the time of his offense, such as section 496d. Accordingly, the trial court erred in denying defendant’s second petition on the ground that he failed to show “that he would have been convicted under section 496, even if section 496d had also been in effect at the time.”
Contrary to the Attorney General’s contention, however, remand to the trial court for reconsideration of defendant’s second petition is not warranted. Defendant provided evidence with his second petition that the value of the stolen property was less than $950. Neither the prosecutor below, nor the Attorney General on appeal, contends that the property was worth more than $950, or that defendant has a prior specified conviction that disqualifies him from relief. (§ 496, subd. (a).) Indeed, the Attorney General acknowledges that the victim testified at the preliminary examination that he bought the motor scooter for less than $900. In the absence of any dispute regarding defendant’s eligibility for relief, we will reverse the order denying his petition and direct the trial court to grant the petition.
IV. DISPOSITION
The September 25, 2017 order denying defendant’s petition to have his felony conviction for receiving stolen property redesignated as a misdemeanor is reversed, and the matter is remanded to the trial court with directions to grant the petition. (Pen Code, §§ 1170.18, subds. (f) & (g), 496.)






___________________________________________
BAMATTRE-MANOUKIAN, ACTING P.J.






WE CONCUR:






__________________________
GROVER, J.






__________________________
GREENWOOD, J.








People v. Washington
H045208