In 2003, among other crimes, Mr. Sweeney was convicted of two felony counts of receiving stolen property, PC 496(a). Each count of 496(a) was enhanced by an admission pursuant to PC 186.22(b), an enhancement application to felony offenses.
Fast forward to 2015 and Sweeney files a PC 1170.18 petition to reduce his two 496(a) felonies to misdemeanors claiming that had Sweeney committed the 496(a) offenses after November 4, 2014, they would be misdemeanors. The trial court found Sweeney ineligible for 1170.18 relief on the ground that had Sweeney committed the 496(a) offenses after the passage of Proposition 47, the misdemeanor gang enhancement in PC 186.22(d), would have elevated the 496(a) offenses to felonies (until and unless the trial court declared these wobblers misdemeanors). Sweeney appealed.
The Fourth District reverses.
As in all 1170.18 petitions, the issue is whether the crime at issue would have necessarily have been a misdemeanor if committed after the November 4, 2014, passage of Proposition 47. If the property at issue in the 496(a) offenses was worth 950 dollars or less, the 496(a) would have been a misdemeanor offense after November 4, 2014. As the felony gang enhancement, PC 186.22(b) would not have been applicable, Sweeney argues the crime would have necessarily been a misdemeanor.
The State replies that while the 186.22(b) felony gang enhancement would not have been applicable, the 186.22(d) misdemeanor gang enhancement would have been applicable and would have elevated the misdemeanor 496(a) counts to wobblers (felonies until and unless the trial court later decided to reduce them to misdemeanors).
The panel concludes that PC 186.22(d) and 186.22(b) are mutually exclusive and because 186.22(d) was never alleged, Sweeney's 496(a) convictions would have necessarily been misdemeanors if the property at issue was 950 dollars or less. They remand the case for Sweeney to refile his petition and prove the property at issue was worth 950 dollars or less.
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