P v. Gomez (4th Dist., Div.2): Comes Another Prop 47 Split; Some VC 10851 Convictions Are Eligible for 1170.18 Relief

Gomez was convicted of a felony under California Vehicle Code section 10851 for taking a 2002 Chevy truck without permission of the owner.  After the November 2014 election, Gomez petitioned the court to reduce his conviction to a misdemeanor pursuant to Penal Code section 1170.18.  Gomez's petition was rather Delphic as to the legal grounds for his prayer.  The trial court denied Gomez's petition, stating the "convicted charge does not qualify".  Gomez appealed.

A panel of the Fourth District affirms.  But it affirms because Gomez's petition failed to state facts, which if true, would entitle Gomez to the relief for which he prayed, to wit; that the Chevy was worth less than 950 dollars.  Eschewing judicial-restraint, the panel goes on to state that certain 10851 convictions are eligible for reductions to misdemeanors pursuant to Penal Code section 1170.18, disagreeing with their colleagues (People v. Page (2015) 241 Cal.App.4th 714).  

IMEO, neither the opinion in Page nor the opinion here really do an acceptable job of analyzing the statutes which create the conflict.  

Section 1170.18 establishes the initial hurdle for petitioners who wish to have their convictions reduced; they must establish that had they committed their crime of conviction post-Prop47, the crime would have necessarily been punished as a misdemeanor.  Gomez claims that his conviction, if committed today, would necessarily be punished as a misdemeanor under Penal Code section 490.2, which states, in pertinent part, that 

 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

The real issue is whether Gomez's 10851 crime, if committed today, would necessarily have fallen within 490.2.  If so, the mandatory language directs the result; "shall be considered petty theft and shall be punished as a misdemeanor". 

 Two statutory issues then arise.   [1] Is the prepositional phrase "Notwithstanding Section 487 or any other provision of law defining grand theft" meant to be exhaustive or illustrative?  Because 10851 does not "define grand theft", whether the introductory phrase is exhaustive or illustrative is critical.  Further, [2] did Gomez's conviction involve "theft" as that term is defined within the penal code (see 484(a))?  

Unfortunately these two issues are never answered in this opinion, nor are they even acknowledged.