People v. Page - When is a Lesser Included Offense Actually Greater?

Issues created by changes to the Penal Code via last November's Proposition 47 are now being decided by the appellate courts.  Here the issue becomes whether a lesser included offense of a misdemeanor can properly be punished as a felony.  According to this panel from the Fourth District, the answer is "yes".  

Prior to last November's election, Page pled guilty to violating California Vehicle Code section 10851,  which proscribes taking or driving someone else's car without their permission with the intent to deprive the owner of possession or ownership for any period of time.  One of the effects of Prop47 was to add a section to the Penal Code which stated that all thefts under 950 dollars are now petty thefts, which are misdemeanors.  Grand theft auto is defined in Penal Code section 487(d), which requires the offender to take possession of someone else's car without their permission with the intent to permanently deprive the owner of his ownership.  As you may notice, Vehicle Code section 10851 is a lesser included of 487(d), meaning you cannot commit a 487(d) without necessarily committing a 10851 (you can't take someone's car with the intent to permanently deprive the owner of his car without necessarily also intending to temporarily deprive the owner of his car).  

Post-election, Page asks the court to reduce his 10851 to a misdemeanor under the theory that because Prop47 made the greater crime, 487(d) a misdemeanor (as long as the car was a hoopty worth less than 950 bucks), necessarily the lesser crime, 10851, must also become a misdemeanor.  Logic would dictate such, yes?  No, says this panel.  Because the amendments to the Penal Code did not mention 10851, there is no indication the lawmakers meant for it to apply in this case.  But what possible rational basis could lawmakers (here the voters) have to punishing a lesser included offense of a misdemeanor as a felony?  This panel doesn't do a very convincing job of answering that question.  Specifically they quote this language from P v. Romo,  “a car thief may not complain because he may have been subjected to imprisonment for more than 10 years for grand theft of an automobile [citations] when, under the same facts, he might have been subjected to no more than 5 years under the provisions of section 10851 of the Vehicle Code.” (People v. Romo (1975) 14 Cal.3d 189, 197.)   Curiously this language cuts the other way; it supports Page's argument.  Grand theft auto is the greater crime, therefore it makes sense a defendant cannot complain of a greater punishment.  Page is saying that he is being punished more severely for committing a lesser crime.  

The panel here takes the textualist tact and says they are not going to rewrite statutes on the basis of logic or reason.  Which is fine.  What leaves a bitter taste is that such judicial restraint seems to almost always find its home in holdings limiting relief for criminal defendants (I speak of the California appellate courts in general, not this particular panel).  This kind of judicial restraint and respect for legislative text seems to go on holiday when the State asks courts to expand their power over individuals.