Mr. Haywood was convicted of violating Vehicle Code section 10851. After the November 2014 election, Haywood petitioned the trial court pursuant to PC 1170.18 to reduce his 10851 conviction to a misdemeanor. The trial court denied the petition and the Third District affirms.
The opinion contains a few pearls of statutory interpretation, but is incomplete and a bit sloppy. The panel could have saved face and just affirmed based on deficiencies in Haywood's petition, but they instead mash some superficial textual observations into a farraginous mound with citations and an inapplicable latin phrase, and serve that to us as judicial textualism.
The threshold question in all 1170.18 cases is, had the defendant committed the crime of conviction after November 4, 2014, would the crime have necessarily been punished as a misdemeanor. For some reason (maybe a scotoma) the panel skips this step and jumps to the portion of 1170.18 that instructs upon which statutes shall be used for resentencing should the defendant meet the initial requirement. Instead the panel misconstrues the resentencing statutes as an exhaustive list of eligible crimes.
Under this panel's reasoning, a defendant whose crime of conviction was a felony burglary of an open 7Eleven wherein the defendant entered the store and stole a bottle of soda pop would not be eligible for 1170.18 relief, because PC 459 is not mentioned within 1170.18. Such is the consequence of the error the panel makes in confusing the test for eligibility with the resentencing statutes. The correct analysis of the the 7Eleven hypothetical is that, despite PC 459 not being mentioned in 1170.18, the defendant would be eligible under 1170.18. He would be eligible because had he committed his crime post-November 2014, his crime would necessarily have been prosecuted under PC 459.5, which is mentioned within 1170.18. This is a beginner's mistake to ignore the distinction between the two clauses in 1170.18.
Thankfully, the panel at least eventually approaches the threshold question; had Haywood committed his VC10851 today, would he necessarily be punished for a misdemeanor? That requires looking to PC 490.2, which, and I paraphrase, states that despite PC487 or any other statute defining grand theft, theft of property worth 950 dollars or less is necessarily punished as a misdemeanor.
The texts of 1170.18 and VC10851 create the next issue; whether the opening prepositional phrase was meant to limit the "thefts" that are to be subsumed within 490.2, or whether the phrase is informative only. Put another way, does 490.2 mandate that all thefts 950 dollars or less must be punished as misdemeanors, or does it only mandate that thefts falling within statutes defining grand theft must be punished as misdemeanors? The panel chooses the latter without actually examining the language or stating why the prepositional phrase should be construed as exhaustive.
Lastly the panel squanders the opportunity to decide an important issue; whether VC 10851 falls within the penal code's definition of "theft". Instead they substitute the observation that 10851 does not require an intent to permanently deprive, which is true. But that is not the issue. The issue is whether or not a 10851 violation necessarily falls within PC 484's definition of "theft".
The eventual holding, that a 10851 conviction is ineligible for relief pursuant to 1170.18, may be correct. But not for the reasons in this opinion.
No comments:
Post a Comment