P v. Nichols (6th Dist.) Another Defensible Holding Based on Indefensible Reasoning; A PC496d Conviction is Not Eligible for PC 1170.18 Reduction

In 2012, Mr. Nichols pleaded guilty to buying or receiving a stolen car, PC 496d, a felony.  After the enactment of Proposition 47 in November 2014, Nichols petitioned the trial court to reduce his 496 conviction to a misdemeanor via PC 1170.18.  The trial court denied the petition and Nichols appealed.

A panel from the Sixth District affirms.

While the result is, IMEO, likely correct, the analysis is abysmal, bereft of any intelligent statutory construction.  The reason for my jeremiad is that it has been demonstrated time and again that the analysis this panel utilizes is logically and legally indefensible.  Here is why.  The statute at issue, PC 1170.18, states in pertinent part.

 a person currently serving a sentence for a conviction of a felony who would have been guilty of a misdemeanor had this act been in effect at the time of the offense may petition for a recall of sentence and request resentencing in accordance with Sections 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amended or added by this act.

There are two clauses in this language.  The first clause states who may petition for a recall of sentence.  The who are persons serving a sentence for a felony conviction which would have necessarily been a misdemeanor conviction had it occurred after November 5, 2014, the date of enactment.  No list of eligible offenses is provided in this clause.  Instead the conviction must be examined within the context of the post-Prop47 Penal Code.

Clause two tells us for what relief an eligible petitioner may request; "resentencing in accordance with Sections [] 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amended or added by this act."

The enumerated statutes do not constitute a list of eligible felony convictions.  Nor could they.  Sections 459.5 and 490.2 did not exist before Proposition 47.   It is anachronistic, illogical, and a complete abandonment of the cannons of statutory interpretation to hold that the enumerated code sections in the second clause were intended as an exhaustive list of eligible convictions.  Yet, read the following from the opinion.

Since section 1170.18, subdivisions (a) and (b) expressly includes certain theft related offenses (§§ 459.5, 473, 476a, 490.2, 496, & 666), we determine that the intent of the voters was to exclude theft related offenses not mentioned in the statute from reclassification and resentencing under Proposition 47. (See, e.g., Sanchez, supra, 52 Cal.App.4th at p. 1001.) The offense of buying or receiving a stolen motor vehicle is set forth in section 496d, which is a statute not included in section 1170.18, subdivisions (a) and (b). Therefore, under the maxim expressio unius est exclusio alterius, a conviction of violating section 496d is excluded from reclassification and resentencing under Proposition 47.

Really?  So a 2013 felony 459 for entering an open convenience store to steal a can of pop is not eligible for 1170.18 relief?  Since 459 is not included in section 1170.18, expressio unius est exclusio alterius requires such a result, right?  No, because the enumerated statutes in the second clause are the statutes under which the resentencing must take place.  A proper application of  expressio unius est exclusio alterius to this statute means excluding resentencing under any code section not enumerated, not excluding from eligibility any pre-Proposition 47 conviction because it was not under an enumerated section.

Pre-Proposition 47 convictions for Penal Code sections 459, 484e, 485, 487a, 487b, 487c, 487d, et. al. are not mentioned in 1170.18, yet they are undeniably potentially eligible for 1170.18 relief.  Why?  Because if the facts underlying the convictions fall within either 459.5 or 490.2 (crimes nonexistent prior to Proposition 47), they would have necessarily been misdemeanors if committed post-Proposition 47, which is what the initial eligibility clause requires.

Despite the faulty reasoning, the result is correct.  Had Nichols received the stolen car on November 5, 2014, would his crime have necessarily been a misdemeanor?  Nope.  Therefore he is ineligible for relief.  A proper analysis doesn't even get to the second clause of the text regarding the resentencing statutes.

There is a connection between the first and second clauses.  Any pre-Novemeber 2014 crime that satisfies the first clause of eligibility will necessarily fall within one of the enumerated resentencing statutes.  But that is not equivalent to saying only prior convictions under the resentencing statutes are eligible for 1170.18 relief.

An appellate court justice should be able to figure out the difference.