P v. Orozco (4th Dist., Div.1): Proposition 47 meets VC 10851 & PC 496d; a Defensible Result from an Indefensible Analysis

Mr. Orozco was caught driving a stolen hoopty (worth around $300).  Orozco said the ubiquitous "unknown male" offered Orozco a ride and Orozco accepted whereupon the helpful no-name took Orozco to the stolen hoopty and Orozco took off in the car.  Orozco pleaded to VC 10851 (taking or driving a stolen car) and PC 469d (possession of a stolen car).

While Orozco was waiting to be sentenced, the voters of California passed Proposition 47.  Orozco petitioned the court to reduce his VC 10851 and PC 496 convictions to misdemeanors pursuant to PC 1170.18.  The trial court denied the petition.  

A panel from the Fourth District affirms the denial.  

This is an irritating opinion.  Not because the result is necessarily wrong, but because the analysis is dead wrong.  Especially irritating is that the opinion prefaces its analysis with a declaration of intent to follow the proper cannon of statutory interpretation, only to immediately abandon the cannon and effectively rewrite PC 1170.18.  

The statute, in pertinent part, is a straightforward two-step.  

A person currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section ('this act') had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case 

to request resentencing in accordance with Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amended or added by this act. (spacing added)

 The first step is to determine whether the conviction at issue is one that would have necessarily been a misdemeanor had it occurred after the passage of Proposition 47.  If the petition passes the first step, then resentencing shall occur in accordance with one of  the enumerated statutes.

For some reason, allegedly learned appellate justices mistake the enumerated resentencing statutes in step two for a list of eligible convictions.  This is plainly wrong.  For one, it is anachronistic.  Penal Code sections 459.5 and 490.2 were added by Proposition 47.  It is impossible for anyone to have convictions for these offenses prior to passage of the Proposition 47.  Second, the resentencing statutes, such as PC 459.5, explicitly subsume prior convictions of other unmentioned statutes.  I will demonstrate.

Take a PC 459 felony conviction from November 1, 2014, where the defendant went into an open 7Eleven and stole a bottle of pop.  This conviction is, without doubt, eligible for PC 1170.18 relief.  However if you follow the panel's analysis, the 7Eleven thief is not eligible.  PC 459 is not mentioned in 1170.18, nor was PC 459 "amended or added" by Proposition 47.  This anomalous result flows from the fact the panel confuses step one with step two.  Certain pre-Prop47 PC 459 convictions are eligible because they would have necessarily been 459.5 convictions post-Prop47.  An eligible 459 conviction would be reduced to a 459.5 and sentenced accordingly.  So too for certain felony thefts that now would be 490.2 convictions.

My philippic finished, the result as to the 10851 makes sense.  One can violate VC 10851 in two ways; take (steal) a car, or drive a stolen car (joyride).  If one "takes" a car, there is a non-specious argument that, if the car is worth less than 950 dollars, the crime is necessarily a misdemeanor because the conviction is required to be under PC490.2.  But here, perhaps poetically, Orozco thought it would mitigate his situation to claim he did not steal the car, rather he only accepted an invitation from an unnamed Samaritan to drive a car that had already been stolen.  His intended self-serving statement ended up anything but.  

The issue of Orozco's 496d is more nuanced.  The issue is whether Proposition 47's amendments to PC 496 have an effect upon 496d and the other possession-of-stolen-property offenses.  Just as PC 459.5 and 490.2, by their plain text, encompass specific, unnamed, pre-Prop 47 convictions, do the amendments to 496 do the same?

But let it be clear, the issue is not whether the statute of the conviction for which 1170.18 relief is being sought is contained within the second, resentencing, clause of 1170.18.  Nor is the issue whether the statute of conviction was added or amended by Proposition 47.  The issue is clear; would the conviction have necessarily been a misdemeanor if committed after Prop47?  If this is true, the resentencing will necessarily be under one of the enumerated statutes, those statutes having been added or amended by Proposition 47.