Filed 10/3/17 P. v. Davis CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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Defendant Sidney Eugene Davis appeals from the trial court’s denial of his Penal Code section 1170.18[1] application to redesignate his conviction for grand theft from a person (§ 487, subd. (c)) from a felony to a misdemeanor. He contends the trial court erred in finding his crime ineligible for resentencing. We agree and shall reverse and remand for additional proceedings on the application.

FACTUAL AND PROCEDURAL BACKGROUND

According to the factual basis of defendant’s plea, on May 5, 2005, defendant took personal property from another person. According to a summary of the police report found in the probation report, defendant entered a recreational vehicle, forced out the three occupants at gunpoint, and demanded money and drugs from them. After taking money and a welfare card with its PIN, he ordered the victims to remove their clothes to ensure they were not hiding anything valuable from him. Defendant had a male and the female victim lie on top of each other and act as if they were having sex; he ordered them to remain in that position or he would kill the third victim. Next, defendant had the third victim dress and take him to the home of a friend who could give defendant money. Defendant later took a cell phone from the third victim.

The probation report related that the female victim suffered a loss of $70 cash and $100 in food stamps, while the cell phone was worth $200.

Defendant was charged with two counts of first degree robbery (§ 211), and single counts of aggravated kidnapping (§ 209, subd. (b)(1)), and sexual battery (§ 243.4, subd. (a)) along with personal use of a firearm allegations (§§ 12022.53, subd. (b), 12022.5, subd. (a)(1)). Pursuant to a plea agreement, defendant pleaded no contest to grand theft from a person as a related offense to one of the robbery charges and was placed on four years of formal probation and ordered to serve 120 days in county jail. The prosecution moved to dismiss the remaining counts and enhancements. The prosecutor stated that this disposition was a result of “proof problems” and “substantial problems with the allegations in this case.”

In May 2016, defendant filed a section 1170.18 application to designate his offense a misdemeanor pursuant to section 1170.18. In August 2016, he filed a statement of proof that the theft was for less than $950, based on the probation report. The prosecution filed an opposition asserting defendant was ineligible for relief because the violent nature of his offense rendered it ineligible.

The trial court denied the petition without a hearing “due to: [Ineligible conviction(s).] [E]xtremely violent behavior not in keeping with the intent of Prop. 47. Also, [section] 487[, subdivision] (c) is still a separate and distinct crime, not dependent on the value of property taken. The rules of statutory construction require the more specific language of [section] 487[, subdivision] (c) be followed.”

DISCUSSION

Defendant contends the trial court erred in finding his crime not eligible for relief under section 1170.18. The Attorney General concedes the point. We accept the concession.

In November 2014, the voters passed Proposition 47, which reduced a number of felony or wobbler offenses to misdemeanors. (See People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) “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 this act had this act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors.” (§ 1170.18, subd. (f).)

Proposition 47 added section 490.2, subdivision (a), which states: “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, except that such person may instead be punished pursuant to subdivision (h) of Section 1170 if that person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290.”

Section 487 states, in pertinent part: “Grand theft is theft committed in any of the following cases: [¶] . . . [¶] (c) When the property is taken from the person of another.”

Section 490.2 could not be more clear on this point. All crimes defining grand theft, including every form of grand theft set forth in section 487 is petty theft when the value of the theft does not exceed $950. There is no exception for a violent commission of grand theft. Invocation of a canon of statutory construction cannot support disregarding the plain statutory language. “If the plain language of a statute . . . is clear and unambiguous, our task is at an end and there is no need to resort to the canons of construction or extrinsic aids to interpretation.” (Butts v. Board of Trustees of California State University (2014) 225 Cal.App.4th 825, 838.)

Section 1170.18 contains no exception for qualifying offenses committed in a violent manner. Section 490.2 does not apply if the defendant “has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290.” (§ 490.2, subd. (a).) Neither exception applies here. There are no other exceptions for a qualifying grand theft conviction when a defendant applies to redesignate the conviction.

While it appears from this record that the amount of the theft in question did not exceed $950, rendering defendant eligible for relief, the matter was never addressed in the trial court. We shall therefore reverse and remand for additional proceedings.

DISPOSITION

The trial court’s order denying defendant’s application is reversed and the matter is remanded for additional proceedings on the application.

BUTZ , J.

We concur:

RAYE , P. J.

BLEASE , J.