P. v. Felix

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Filed 11/14/16 P. v. Felix CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
ANDREW SEAN ASHLEY FELIX,
Defendant and Appellant.
2d Crim. No. B268707
(Super. Ct. No. 1479726)
(Santa Barbara County)
Appellant Andrew Sean Ashley Felix pled no contest
to the unlawful taking or driving of a vehicle in violation of
Vehicle Code section 10851, subdivision (a). He also admitted the
truth of a prior strike conviction. (Pen. Code, §§ 136.1, 1170.12,
subds. (a)-(d), 667, subds. (b)-(i).)1 Appellant moved to reduce the
charge to a misdemeanor pursuant to Proposition 47. The trial
court denied the motion, and sentenced appellant to the low term
of 16 months, doubled pursuant to the “Three Strikes” law, for a
1 All further statutory references are to the Penal Code
unless otherwise stated.

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total of 32 months in state prison. Appellant filed a notice of
appeal and requested a certificate of probable cause, which the
court granted.
Appellant contends Proposition 47 reduces his
conviction for violation of Vehicle Code section 10851 to a
misdemeanor. He claims specifically Proposition 47 applies to his
conviction because it is a theft crime and falls under the language
of section 490.2. We disagree and affirm.
FACTS
The information alleged that “[o]n or about April 28,
2015, in the County of Santa Barbara, the crime of UNLAWFUL
DRIVING OR TAKING OF A VEHICLE, in violation of
VEHICLE CODE SECTION 10851 [subdivision] (a), a Felony,
was committed by [appellant], who did unlawfully drive and take
a certain vehicle, to wit: 91 RED HONDA ACCORD, then and
there the personal property of ANTONIO MACIAL ROSALES
without the consent of and with intent, either permanently or
temporarily, to deprive the said owner of title to and possession of
said vehicle.” Appellant, who pled no contest to the charge,
proffered evidence that the vehicle was worth less than $950 at
the time of the offense.
DISCUSSION
In November 2014, the voters enacted Proposition 47,
the Safe Neighborhoods and Schools Act (Act). The Act
established procedures for petitions for reduced sentences for
specified nonserious and nonviolent property and drug crimes by
adding section 1170.18. This statute 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 [A]ct that added this section . . . had

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this [A]ct 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 [A]ct.” (§ 1170.18, subd. (a).) Section 1170.18, subdivision
(b) provides that a court that receives such a petition shall
resentence the petitioner “unless the court, in its discretion,
determines that resentencing the petitioner would pose an
unreasonable risk of danger to public safety.”
Though section 1170.18 does not specifically refer to
Vehicle Code section 10851, appellant argues that the voters of
California intended that violations of Vehicle Code section 10851
be included in the reforms of Proposition 47. There is no
consensus among the courts of appeal on this issue, which is
currently on review before our Supreme Court.2 As we shall
explain, we agree with the holding in People v. Johnston (2016)
247 Cal.App.4th 252, review granted July 13, 2016, S235041
2 The Supreme Court has granted review of several cases
raising this issue. In People v. Page, the Fourth District Court of
Appeal held a defendant convicted under Vehicle Code section
10851 was not eligible for relief under section 1170.18. (People v.
Page, review granted Jan. 27, 2016, S230793 (Page).) The Third
District followed the reasoning of Page in People v. Haywood,
review granted March 9, 2016, S232250, and Johnston, supra,
247 Cal.App.4th at pp. 255-259, review granted. Similarly, the
Second District held that Proposition 47 does not apply to Vehicle
Code section 10851. (People v. Solis, review granted June 8,
2016, S234150.) The Sixth District disagreed with Page in People
v. Ortiz, review granted March 16, 2016, S232344.

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(Johnston), that unlawfully taking or driving a vehicle in
violation of Vehicle Code section 10851 does not come within the
ambit of section 1170.18.3 (Johnston, at p. 255.)
“[O]ur interpretation of a ballot initiative is governed
by the same rules that apply in construing a statute enacted by
the Legislature. [Citations.] We therefore first look to ‘the
language of the statute, affording the words their ordinary and
usual meaning and viewing them in their statutory context.’
[Citations.]” (People v. Park (2013) 56 Cal.4th 782, 796.) “‘“When
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.)
Section 1170.18, subdivision (a) does not identify
Vehicle Code section 10851 as one of the code sections amended
or added by Proposition 47. Moreover, Proposition 47 did not
amend language in Vehicle Code section 10851, subdivision (a),
which provides that a violation of the statute is punishable as
either a felony or a misdemeanor. Appellant focuses on
Proposition 47's addition of section 490.2, which states in
relevant part: “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 . . . .” (§ 490.2, subd. (a).) Appellant argues that
section 490.2 broadens the scope of petty theft to include a
violation of Vehicle Code section 10851.
3 Johnston is citable as persuasive authority under new
publication rules that went into effect on July 1, 2016. (See Cal.
Rules of Court, rules 8.1105, 8.1115.)

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Appellant’s statutory interpretation is not
persuasive. Section 490.2 amends the definition of grand theft,
as set forth in section 487 or any other provision of law, to
reclassify as petty theft certain offenses that would have
previously been grand theft. But, unlike section 487, Vehicle
Code section 10851 is not included in section 490.2. Nor can
Vehicle Code section 10851 be considered “any other provision of
law defining grand theft.” Vehicle Code section 10851 does not
define the taking or driving of a vehicle as grand theft and is
much broader than statutes that prohibit theft. A theft is
committed only if the defendant intends to permanently deprive
the owner of his or her property (People v. Abilez (2007) 41
Cal.4th 472, 510), while a defendant can violate Vehicle Code
section 10851 if he or she either takes a vehicle with intent to
steal it or by driving it with the intent only to temporarily
deprive the owner of its possession. (People v. Garza (2005)
35 Cal.4th 866, 871.) Thus, section 490.2 does not apply to
appellant’s conviction. (See Johnston, supra, 247 Cal.App.4th at
p. 258, review granted.)
Appellant asserts that any ambiguity in the statute
must be read in his favor. Section 1170.18 expressly includes
certain theft offenses (§§ 459.5, 473, 476a, 490.2, 496 & 666), but
does not include Vehicle Code section 10851. There is nothing
ambiguous about the offenses that are included or about
excluding Vehicle Code section 10851 from the list. “The
expression of some things in a statute necessarily means the
exclusion of other things not expressed. [Citation.]” (Gikas v.
Zolin (1993) 6 Cal.4th 841, 852.) In other words, where the
Legislature expressly includes certain criminal offenses in a
statute, the legislative intent was to exclude offenses that were

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not mentioned. (People v. Sanchez (1997) 52 Cal.App.4th 997,
1001-1002; Johnston, supra, 247 Cal.App.4th at p. 257, review
granted [“[T]he inclusion of only certain items in an associated
group gives rise to a strong inference of a deliberate legislative
choice to exclude any items not mentioned, absent a compelling
indication of legislative intent to the contrary”].) Given Vehicle
Code section 10851’s exclusion from the statutes added or
amended by Proposition 47, we conclude appellant is ineligible
for resentencing. (See Johnston, at pp. 257-259.)
DISPOSITION
The order denying the Proposition 47 petition is
affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
YEGAN, Acting P. J.
TANGEMAN, J.

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John F. McGregor, Judge
Superior Court County of Santa Barbara
______________________________
Bases & Bases and Arielle Bases for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney
General, Noah P. Hill and Analee J. Brodie, Deputy Attorneys General, for
Plaintiff and Respondent.

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