Does Prop 47 Make Receiving Stolen Car a Misdemeanor?
Brief Synopsis: Receiving a stolen car worth less than $950 is not a misdemeanor under Proposition 47, as the following case summary from the California Supreme Court explains.
However, the Fourth Appellate District declined to reduce Mr. Garness’ felony because it decided receiving a stolen vehicle, a violation of Penal Code § 496d(a), was not an enumerated offense included within Proposition 47, although Penal Code § 496, receiving stolen property, was. The appellate court held that receiving a stolen vehicle was distinguishable from receiving stolen property, as a stolen vehicle had a separate code section addressing this crime as different from “generic” receiving stolen property. Section 496d(a) did not merge with 496, as Garness urged the court to find.
At about the same time as Garness was being decided, Mr. Ernest Orozco was being prosecuted for the same offense, receiving a stolen vehicle under Penal Code § 496d(a). He took his case up to the Fourth Appellate District and then up to the California Supreme Court.
Mr. Orozco was stopped by police in August 2014 while he was driving a stolen car in Escondido. The police report valued the car at $310. Mr. Orozco had three prior convictions for violating Vehicle Code § 10851 (unlawfully driving a vehicle that is not one’s own without permission, also commonly referred to as joyriding) and eight prior prison terms under Penal Code § 667.5.
At the time, Proposition 47 had yet to be passed, so due to Mr. Orozco’s prior record, he was required to be sentenced as a felon under 666.5 for the August 2014 crime.
Mr. Orozco thereafter plead guilty to again violating Vehicle Code § 10851 and a violation of Penal Code § 496a(d).
After Mr. Orozco entered his plea, voters approved Proposition 47 on December 11, 2014. Orozco then filed a motion under Penal Code § 1170.18, as permitted by Proposition 47, to reduce both of his most recent convictions to misdemeanors. The trial court denied Orozco’s motion.
Orozco then appealed to the Fourth Appellate District, which affirmed the trial court. Orozco then appealed up to the California Supreme Court, which granted review and then remanded the case to the Fourth Appellate District to re-evaluate the case in light of People v. Page (2017) 3 Cal.5th 1175.
In Page, the California Supreme Court held that “obtaining an automobile worth $950 or less by theft . . . is punishable only as a misdemeanor, regardless of the statutory section under which the theft was charged.” Id., at 1187; see also People v. Wehr (2019) 41 Cal.App.5th 123 (“Just as section 490.2 applies to obtaining any property by theft, section 496 applies to ‘buying or receiving any property that has been stolen.’ . . . Thus, receiving a stolen car valued at no more than $950 must be treated as a misdemeanor.”).
The Fourth Appellate District then affirmed its earlier ruling and Orozco appealed to the California Supreme Court again. It was unclear to this reader while principals of res judicata and collateral estoppel did not bar Orozco’s second appeal back up to the Supreme Court.
On this second appeal to the highest court, the Attorney General opposed Orozco’s petition, pointing out the well-established rule of statutory construction that “when voters have employed a term or phrase in one place and excluded it in another, it should not be implied where excluded.” People v. Buycks (2018) 5 Cal.5th 857, 880.
Moreover, the Supreme Court pointed out, the analogy of 496 to 490.2, as made in Wehr, above, is “inept.” The Supreme Court pointed out that 490.2 was a new section brought in with Prop 47 as a “catch all” petty theft provision. It stands alone and separate in its scope.
Prop 47’s amendment to section 496(a), by contrast, does not exhibit the same intent to broadly include conduct criminalized by 496d(a) (receiving a stolen vehicle). Therefore, 496d(a) must be viewed outside the scope of Prop 47’s intended reach.