P. v. Fernandez

Filed 3/11/16 P. v. Fernandez CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
ANTHONY FERNANDEZ,
Defendant and Appellant.
B266087
(Los Angeles County
Super. Ct. No. VA138442)
APPEAL from an order of the Superior Court of Los Angeles County, Michael A.
Cowell, Judge. Affirmed.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Mary Sanchez and Noah P. Hill,
Deputy Attorneys General, for Plaintiff and Respondent.
* * * * * *

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In a felony complaint filed on March 2, 2015, Anthony Fernandez was charged with
receiving a stolen vehicle on February 26, 2015, in violation of Penal Code section 496d,
subdivision (a).1 On March 20, 2015, he pled no contest, admitted a prior strike conviction,
and was sentenced to 32 months in state prison. On May 20, 2015, he filed a petition for
resentencing pursuant to section 1170.18, previously added by Proposition 47 in
November 2014. The trial court denied the petition on the ground that section 496d,
subdivision (a) was not subject to Proposition 47. Appellant timely appealed the court’s
order.
As enacted by Proposition 47, section 1170.18 provides in relevant part: “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.” (§ 1170.18, subd. (a).)
We question whether appellant can take advantage of the petition procedure in
section 1170.18, given he committed his offense after Proposition 47 went into effect.
Section 1170.18 contemplates a procedure for defendants to seek relief if they are serving a
felony sentence but “who would have been guilty of a misdemeanor under the act . . . had
this act been in effect at the time of the offense.” (§ 1170.18, subd. (a), italics added.) This
1 Penal Code section 496d, subdivision (a) states in relevant part: “Every person who
buys or receives any motor vehicle, as defined in Section 415 of the Vehicle Code, . . . that
has been stolen or that has been obtained in any manner constituting theft or extortion,
knowing the property to be stolen or obtained, or who conceals, sells, withholds, or aids in
concealing, selling, or withholding any motor vehicle . . . from the owner, knowing the
property to be stolen or obtained, shall be punished by imprisonment pursuant to subdivision
(h) of Section 1170 for 16 months or two or three years or a fine of not more than ten
thousand dollars ($10,000), or both, or by imprisonment in a county jail not to exceed one
year or a fine of not more than one thousand dollars ($1,000), or both.” Undesignated
statutory citations are to the Penal Code.

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language suggests those defendants committing offenses after Proposition 47 went into
effect must seek relief by other means, such as by timely challenging the felony complaint
or information. But the parties have not briefed the issue, so we leave it for another day.
Even if appellant’s petition were proper, we hold section 496d, subdivision (a) was not
affected by Proposition 47. (See People v. Nichols (2016) 244 Cal.App.4th 681 (Nichols).)2
Proposition 47 did not amend section 496d, and it is not listed in section 1170.18.
Thus, the voters must have intended to exclude section 496d from reclassification and
resentencing under Proposition 47. (Nichols, supra, 244 Cal.App.4th at p. 688.) Nor was
section 496d affected by the amendment of section 496, receiving or concealing stolen
property, because section 496d prohibits the distinct act of receiving a stolen vehicle. Any
other interpretation would render section 496d superfluous. And section 496d was not
affected by the enactment of section 490.2, subdivision (a), which provides:
“Notwithstanding Section 487 or any other provision of law defining grand theft, obtaining
any property by theft where the value of the money, labor, real or personal property taken
does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be
punished as a misdemeanor . . . .” Section 496d, subdivision (a) does not define a theft
offense, so it does not fall within section 490.2. Indeed, the voters’ decision to list section
496 alongside section 490.2 in section 1170.18 indicates they did not consider receiving
stolen property as a form of theft.
DISPOSITION
The court’s order is affirmed.
FLIER, J.
WE CONCUR:
RUBIN, Acting P. J. GRIMES, J.
2 This issue is currently pending before our Supreme Court. (People v. Peacock
(2015) 242 Cal.App.4th 708, rev. granted Feb. 17, 2016, S230948.)

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