P v. Bush (4th Dist., Div.2) PC 368(d), As It Existed in 2002, Is Not an Eligible Offense For PC 1170.18 Relief

In 2002, Mr. Bush was convicted of, among other crimes, two felony counts of PC 368(d), theft from an elderly person, and three felony counts of PC 496, possession of stolen property.  Following the November 2014 passage of Proposition 47, Bush petitioned the trial court to reduce the five above felony convictions to misdemeanors.  The trial court denied the petition and Bush appealed.

A panel from the Fourth District affirms the denial as to the PC 368(d) counts, but reverses and remands as to the PC 496 counts for the trial court to reconsider those counts.

The opinion contains an indefensible analysis of PC 1170.18(a).  This faulty analysis is erroneous on its face, is anachronistic, and casts doubt on the competence of certain members of California's Courts of Appeal.

Proposition 47 of 2014 resulted in converting to straight misdemeanors certain offenses that were formerly wobblers or straight felonies (with exceptions inapplicable here).  It did this using two different methods.  Method one was to simply amend the punishment for existing crimes.  The crime of possession of a controlled substance is an example of this method.  The second method (oversight of which is the basis for the panel's faulty analysis) was to create a new misdemeanor crime which necessarily encompasses criminal activity that would have formerly been felonious.  Penal Code section 459.5, shoplifting, is an example.  Proposition 47 carved out a subset of offenses that were formerly felony commercial burglaries and placed them within the new misdemeanor crime of shoplifting.  With this in mind, consider the following language.

 A person currently serving a sentence for a conviction, whether by trial or plea, 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 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.

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.   This panel's interpretation would render the 1170.18 references to 459.5 and 490.2 surplusage. 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, this opinion holds that only the following convictions are eligible for 1170.18 relief:  PC 473, 476a, 496, and Health and Safety Code sections 11350, 11357, and 11377.

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.


In making this initial error of statutory interpretation, the opinion is immune to any further meaningful analysis.  For the glare from this error, the reader is blinded.  Fortunately, they aren't missing anything of value.