P. v. Smedley

Filed 4/26/16 P. v. Smedley CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
TIMOTHY ERROL SMEDLEY,
Defendant and Appellant.
H042345
(Santa Clara County
Super. Ct. No. CC773030)
I. INTRODUCTION
In July 2008 defendant Timothy Errol Smedley pleaded no contest to more than
20 felony offenses, including buying or receiving a stolen motor vehicle (Pen. Code,
§ 496d;1 count 21) and receiving stolen goods (§ 496, subd. (a); count 24), and admitted
the prior conviction allegations. The trial court imposed a total term of 21 years
8 months in the state prison.
In March 2015 defendant filed a petition to resentence two of his felony
convictions (count 21 and count 24) as misdemeanors pursuant to section 1170.18,
subdivision (a). Section 1170.18 was enacted by Proposition 47, the Safe Neighborhoods
and Schools Act. (Prop. 47, as approved by voters, Gen. Elec. (Nov. 4, 2014), eff.
Nov. 5, 2014.) The trial court denied the petition on the ground that a felony conviction
1 All statutory references hereafter are to the Penal Code unless otherwise
indicated.

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for buying or receiving a stolen motor vehicle in violation of section 496d2 (count 21) is
ineligible for resentencing under section 1170.18. The court also found that
section 1170.18 did not apply to count 24 since that was a felony conviction for receiving
stolen goods (§ 496, subd. (a)) in excess of $950.
On appeal, defendant contends that the trial court erred because section 1170.18
should be construed to make a felony conviction for violating section 496d eligible for
resentencing where the value of the stolen motor vehicle was $950 or less. Defendant
also contends the trial court’s order denying resentencing of his section 496d conviction
violates his constitutional right to equal protection. For the reasons stated below, we find
no merit in defendant’s contentions and therefore we will affirm the order.
II. FACTUAL AND PROCEDURAL BACKGROUND
On July 30, 2008, defendant pleaded no contest to more than 20 felony offenses,
including buying or receiving a stolen motor vehicle, a Hauli trailer (§ 496d; count 21)
and receiving stolen goods (§ 496, subd. (a); count 24), and admitted the prior conviction
allegations. The trial court imposed a total term of 21 years 8 months in the state prison.
The record on appeal does not contain any information regarding the value of the stolen
Hauli trailer.
2 At the time of defendant’s 2007 offenses, former section 496d, subdivision (a)
provided: “Every person who buys or receives any motor vehicle, as defined in
Section 415 of the Vehicle Code, any trailer, as defined in Section 630 of the Vehicle
Code, any special construction equipment, as defined in Section 565 of the Vehicle Code,
or any vessel, as defined in Section 21 of the Harbors and Navigation 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, trailer, special construction
equipment, or vessel from the owner, knowing the property to be so stolen or obtained,
shall be punished by imprisonment in the state prison 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.”

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On March 23, 2015, defendant filed a petition to resentence two of his felony
convictions, count 21 and count 24, pursuant to section 1170.18, subdivision (a). During
the hearing on the petition held on April 27, 2015, the court stated that “[defendant] has
petitioned for relief under Proposition 47 in two counts. One, although it indicates a
[section] 10851 of the Vehicle Code on the petition, in fact Count 21 is a violation of
Penal Code Section 496[d], possession of a stolen automobile, which is not an eligible
offense. Count 24 is a violation of Penal Code Section 496(a) which of course can be one
of the offenses subject to reduction.”
After the prosecutor advised the trial court that the stolen property alleged in
count 24 was the proceeds of a bank robbery in the amount of $30,989, the court denied
the petition for resentencing, ruling: “I will deny the petition because the value of the
property in the possession of the defendant did exceed the $950 limit.”
III. DISCUSSION
Defendant filed a timely notice of appeal from the trial court’s April 27, 2015
order. We will begin our evaluation of defendant’s contentions of trial court error with a
brief summary of the pertinent provisions of Proposition 47.
A. Proposition 47
On November 4, 2014, the voters enacted Proposition 47, which reclassified
certain felony drug and theft related offenses as misdemeanors and enacted a new
statutory provision, section 1170.18, whereby a person serving a felony sentence for the
reclassified offenses may petition for a recall of his or her sentence. (§ 1170.18,
subd. (a).)
Section 1170.18 applies to “[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.” (Id., subd. (a).) Under section 1170.18, subdivision (a),
such a person “may petition for a recall of sentence before the trial court that entered the

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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.” Section 1170.18, subdivision (b) specifies the procedure for a trial
court to follow “[u]pon receiving a petition under subdivision (a).”
The theft related offenses enumerated in section 1170.18, subdivisions (a) and (b)
that may be reclassified and resentenced as misdemeanors under Proposition 47 include
shoplifting with a value of $950 or less [§ 459.5, subd (a)]; forgery of a document with
a value of $950 or less [§ 473, subd (b)]; issuing a check for $950 or less without
sufficient funds [§ 476a, subd. (b)]; petty theft with a value of $950 or less [§ 490.2,
subd. (a)]; receiving stolen property with a value of $950 or less [§ 496, subd.(a)]; and
petty theft with a prior theft conviction [§ 666, subd. (a)]. The offense of buying or
receiving a stolen motor vehicle (§ 496d) is not one of the theft related offenses listed in
section 1170.18, subdivisions (a) and (b).
B. Exclusion of Section 496d
On appeal, defendant contends that the trial court erred in denying his petition for
resentencing under Proposition 47 because section 1170.18 should be construed to apply
to a felony conviction for violating section 496d where the value of the stolen motor
vehicle was $950 or less.
Defendant acknowledges that Proposition 47 did not amend section 496d to
provide that the offense of buying or receiving a stolen motor vehicle with a value of
$950 or less is a misdemeanor. Despite this omission, defendant maintains that it is clear
that the voters intended that all theft related offenses be treated as misdemeanors where
the value of the property is less than $950. Defendant explains that section 496d is a
“narrower version” of the misdemeanor offense of of receiving stolen property with a
value of $950 (§ 496, subd (a)), which is expressly eligible for resentencing under
section 1170.18, subdivisions (a). Further, defendant asserts that construing

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section 1170.18 to apply to the offense of buying or receiving a stolen motor vehicle
with a value of $950 or less would serve the purpose of Proposition 47 “to channel
incarceration spending to serious crime, to maximize alternatives to incarceration for
nonserious crime, and to invest the savings in children’s and adult programs.”
The People argue that defendant’s statutory analysis is incorrect because the plain
language of Proposition 47 and section 1170.18 does not include section 496d. In
addition, the People assert that the voters did not intend to amend section 496d to bring
the offense of buying or receiving a stolen motor vehicle with a value of $950 or less
within the scope of section 1170.18 because “[h]ad the voters intended to include or
amend more statutes, they would have done so.” Alternatively, the People contend that
even assuming that the offense of buying or receiving a stolen motor vehicle with a value
of $950 or less is eligible for resentencing under section 1170.18, defendant failed to
meet his burden to show that the value of the stolen trailer was $950 or less.
We will resolve the issue by applying the rules of statutory interpretation, which
are applicable to voter initiatives like Proposition 47. “When we interpret an initiative,
we apply the same principles governing statutory construction. We first consider the
initiative’s language, giving the words their ordinary meaning and construing this
language in the context of the statute and initiative as a whole. If the language is not
ambiguous, we presume the voters intended the meaning apparent from that language,
and we may not add to the statute or rewrite it to conform to some assumed intent not
apparent from that language. If the language is ambiguous, courts may consider ballot
summaries and arguments in determining the voters’ intent and understanding of a ballot
measure. [Citation.]” (People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 571
(Pearson).)
Thus, “ ‘ “[w]hen statutory language is clear and unambiguous, there is no need
for construction and courts should not indulge in it.” [Citation.]’ [Citation.]” (People v.
Hendrix (1997) 16 Cal.4th 508, 512.) We also consider the maxim expressio unius est

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exclusio alterius: “The expression of some things in a statute necessarily means the
exclusion of other things not expressed.” (Gikas v. Zolin (1993) 6 Cal.4th 841, 852.)
Under that maxim, where the Legislature expressly includes certain criminal offenses in a
statute, the legislative intent was to exclude offenses that were not mentioned. (People v.
Sanchez (1997) 52 Cal.App.4th 997, 1001 (Sanchez); People v. Walker (2000) 85
Cal.App.4th 969, 973 [same]; People v. Brun (1989) 212 Cal.App.3d 951, 954 [same].)
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.
Moreover, to construe section 1170.18 as including section 496d would be
inconsistent with our Supreme Court’s instructions. We may not “add to the statute or
rewrite it to conform to some assumed intent not apparent from that language.”
(Pearson, supra, 48 Cal.4th at p. 571.) And “ ‘[w]henever possible, significance must be
given to every word [in a statute] in pursuing the legislative purpose, and the court should
avoid a construction that makes some words surplusage.’ [Citation.]” (People v.
Rodriguez (2012) 55 Cal.4th 1125, 1131.)
We therefore conclude that the trial court did not err in denying defendant’s
petition for resentencing because section 496d is not included in section 1170.18. The
rule of lenity argued by defendant does not convince us to alter our conclusion. Under
the rule of lenity, “courts must resolve doubts as to the meaning of a statute in a criminal
defendant’s favor.” (People v. Avery (2002) 27 Cal.4th 49, 57.) However, “ ‘[t]he rule

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[of lenity] applies only if the court can do no more than guess what the legislative body
intended; there must be an egregious ambiguity and uncertainty to justify invoking the
rule.’ [Citation.]” (Id. at p. 58.) We have found no ambiguity in the language of
section 1170.18, subdivisions (a) and (b) with respect to the theft related offenses that are
eligible for reclassification and resentencing; therefore, the rule of lenity does not apply.
C. Equal Protection
Defendant also contends that denying a petition for resentencing of a section 496d
conviction of buying or receiving a stolen motor vehicle with a value of $950 or less
violates the constitutional right to equal protection. According to defendant, a person
who is guilty of the offense of receiving a stolen vehicle (§ 496d) with a value of $950 or
less is similarly situated to a person who is guilty of one of the theft related offenses
where the value of the property was $950 or less that is eligible for resentencing under
section 1170.18.
Defendant correctly asserts that the federal equal protection clause (U.S. Const.,
14th Amend.) and the California equal protection clause (Cal. Const., art. I, § 7) provide
that all persons similarly situated should be treated alike. However, California Supreme
Court authority precludes a finding of an equal protection violation in this case. “A
defendant . . . ‘does not have a fundamental interest in a specific term of imprisonment or
in the designation a particular crime receives.’ [Citations.]” (People v. Wilkinson (2004)
33 Cal.4th 821, 838 (Wilkinson).) Therefore, the rational basis test is applicable to an
equal protection challenge involving “ ‘an alleged sentencing disparity.’ ” (Ibid.) Our
Supreme Court also applied the rational basis test to an alleged statutory disparity:
“Where, as here, a disputed statutory disparity implicates no suspect class or fundamental
right, ‘equal protection of the law is denied only where there is no “rational relationship
between the disparity of treatment and some legitimate governmental purpose.” ’
[Citations.]” (Johnson v. Department of Justice (2015) 60 Cal.4th 871, 881 (Johnson).)

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The Johnson court applied the rational basis test as follows: “ ‘This standard of
rationality does not depend upon whether lawmakers ever actually articulated the purpose
they sought to achieve. Nor must the underlying rationale be empirically substantiated.
[Citation.] While the realities of the subject matter cannot be completely ignored
[citation], a court may engage in “ ‘rational speculation’ ” as to the justifications for the
legislative choice [citation]. It is immaterial for rational basis review “whether or not”
any such speculation has “a foundation in the record.” ’ [Citation.]” (Johnson, supra,
60 Cal.4th at p. 881.) Therefore, “[t]o mount a successful rational basis challenge, a
party must ‘ “negative every conceivable basis” ’ that might support the disputed
statutory disparity. [Citations.] If a plausible basis exists for the disparity, courts may
not second-guess its ‘ “wisdom, fairness, or logic.” ’ [Citations.]” (Ibid.)
We find that there are several plausible reasons for the alleged disparity in
excluding a conviction under section 496d from reclassification and resentencing under
section 1170.18 where the value of the stolen motor vehicle was $950 or less. One
reason is that the offense of buying or receiving a stolen motor vehicle may have greater
consequences for the victims than other theft related offenses. The owners of motor
vehicles are often dependent on their vehicles for transportation to work and school, and
for obtaining the necessities of life, more so than other forms of stolen property.
Another reason is that stolen vehicles may be sold for parts in “chop shops,”
which may increase their worth. Targeting that type of criminal enterprise was in part the
Legislature’s intent in enacting section 496d, as indicated in the legislative history. The
bill’s author proposed that section 496d be added “ ‘to the Penal Code to encompass only
motor vehicles related to the receiving of stolen property.’ ” (Sen. Rules Com., Off. of
Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 2390 (1997-1998 Reg. Sess.)
as amended June 23, 1998.) Section 496d was described as “ ‘provid[ing] additional
tools to law enforcement for utilization in combating vehicle theft and prosecuting
vehicle thieves. Incarcerating vehicle thieves provides safer streets and saves

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Californians millions of dollars. These proposals target persons involved in the business
of vehicle theft and would identify persons having prior felony convictions for the
receiving of stolen vehicles for enhanced sentences.’ ” (Sen. Rules Com., Off. of Sen.
Floor Analyses, 3d reading analysis of Assem. Bill No. 2390 (1997-1998 Reg. Sess.) as
amended June 23, 1998.)
We agree with the People that a third plausible reason for the alleged disparity in
excluding a conviction under section 496d from section 1170.18 concerns prosecutorial
discretion in charging the offense of receiving a low value stolen motor vehicle as a
felony under section 496d, rather than as a misdemeanor under section 496. Our
Supreme Court has ruled that “numerous factors properly may enter into a prosecutor’s
decision to charge under one statute and not another, such as a defendant’s background
and the severity of the crime, and so long as there is no showing that a defendant ‘has
been singled out deliberately for prosecution on the basis of some invidious criterion,’
that is, ‘ “one that is arbitrary and thus unjustified because it bears no rational relationship
to legitimate law enforcement interests[,]” ’ the defendant cannot make out an equal
protection violation. [Citation.]” (Wilkinson, supra, 33 Cal.4th at pp. 838-839.)
Accordingly, we determine that the rational basis test is satisfied because there is a
plausible basis for the alleged sentencing disparity between a conviction under
section 496d for buying or receiving a motor vehicle with a value of $950 or less, which
is not eligible for reclassification and resentencing under section 1170.18, and the eligible
theft related convictions where the property had a value of $950 or less. We therefore
find no merit in defendant’s equal protection claim.
Defendant’s reliance on the decision in People v. Noyan (2014) 232 Cal.App.4th
657 (Noyan) for a contrary conclusion is misplaced, since that decision is distinguishable.
In Noyan, the issue was “whether there is a rational basis for imposing a state prison
sentence on someone, such as defendant, convicted of violating section 4573.5 [bringing
an alcoholic beverage into a prison] but imposing a county jail sentence on someone

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convicted of violating section 4573 [bringing a controlled substance into a prison].” (Id.
at p. 668.) No issue regarding a petition for resentencing under section 1170.18 was
raised in Noyan.
Finally, we decline defendant’s request for a remand for further proceedings to
determine the value of the stolen motor vehicle involved in his section 496d conviction.
We have concluded that defendant’s section 496d conviction is not eligible for
reclassification and resentencing under section 1170.18 even if the actual value of the
stolen motor vehicle was $950 or less.
For these reasons, we conclude the trial court did not err in denying defendant’s
petition for resentencing. We will therefore affirm the order.
IV. DISPOSITION
The order of April 27, 2015, is affirmed.

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___________________________________________
BAMATTRE-MANOUKIAN, J.
WE CONCUR:
__________________________
ELIA, ACTING P.J.
__________________________
MIHARA, J.
People v. Smedley
H042345

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