P v. Varner (4th Dist, Div.2) PC 496d(a) Conviction Categorically Ineligible for Relief Pursuant to PC 1170.18

In the summer of 2014, Mr. Varner pleaded guilty to possession of a stolen motorcycle pursuant to PC 496d(a).  March of 2015, Varner petitioned the trial court, via PC 1170.18, to reduce his 496d conviction to a misdemeanor and asserted the value of the motorcycle was less than 950 dollars.  The trial court denied the petition, ruling that a PC 496d conviction was categorically ineligible for relief.  Varner appealed.

The Fourth District affirms.

The issue of whether a PC 496d conviction, when the vehicle is worth less than 950 dollars, is eligible for PC 1170.18 relief is currently before the California Supreme Court.  Why this panel would embarrass itself by publishing an opinion of this quality in the interim is puzzling.  

The opinion gets it wrong from the start, justifying its decision on these grounds: 

The trial court did not err because section 496d is not included in section 1170.18.  

This statement (at best) misstates the issue.  As I have stated before, PC 1170.18 has two parts.  The first part requires determining whether the felony conviction at issue would necessarily have been a misdemeanor if it was committed after November 4, 2014.  If the conviction would necessarily be a misdemeanor, resentencing may occur under one of the enumerated statutes.  Because a particular statute of conviction is not mentioned within the enumerated resentencing statutes does not (and cannot) mean it is categorically ineligible.  Example A: PC 459 is not mentioned in 1170.18.  However, a 2013 PC 459 conviction for going into a gas station to steal a can of pop is, without dispute, eligible for relief under 1170.18.  This is because PC 459.5, added to the penal code via Proposition 47, subsumes certain 459 convictions.  The fact that PC 459 appears nowhere in PC 1170.18 does not mean PC 459 convictions are categorically ineligible.    

Varner's argument is that, if committed after November 4, 2014, his crime of possessing a stolen motorcycle worth less than 950 dollars would have necessarily been a misdemeanor by way of Proposition 47's amendment to PC 496, that the 2014 amendment to PC 496 subsumed a subset of 496d convictions, and he is entitled to resentencing under PC 496 (one of the enumerated statutes of resentencing).   

The panel disingenuously glosses over this issue, which IMEO can reasonably go either way.  On one hand, 496 was amended more recently and deems possession of "any property that has been stolen" a misdemeanor if worth less than 950 dollars.  On the other hand PC 496d, amended last in 2011, makes the possession of a stolen vehicle a wobbler regardless of value.  One of these two statutes must trump the other in circumstances such as present here.  The interpretative tools of "most recent controls" and "the specific trumps the general" may provide an answer.  Or they may not, requiring a look into the ballot materials of the November 2014 initiative behind the amendments.     

Sadly this opinion doesn't even try.