P. v. Villalva

Filed 4/18/19 P. v. Villava CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
ZACHARIAH VILLALVA,
Defendant and Appellant.
D073699
(Super. Ct. No. SCD271327;
SCD274607)
APPEAL from a judgment of the Superior Court of San Diego County, Eugenia A.
Eyherabide, Judge. Affirmed.
David W. Boudreau, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Warren J.
Williams, Deputy Attorneys General, for Plaintiff and Respondent.

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The issue in this case is whether under Proposition 47 a felony violation of
receiving a stolen motor vehicle under Penal Code1 section 496d, subdivision (a)
(hereafter section 496d) requires the prosecution to prove the value of the vehicle was
$950 or more. There is a split of appellate authority on this point and the issue is pending
before the California Supreme Court in People v. Orozco (2018) 24 Cal.App.5th 667
(Orozco), reviewed granted August 15, 2018, S249495. Pending further guidance from
the Supreme Court and following Orozco, we conclude that section 496d was not affected
by Proposition 47 and, therefore, affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The facts underlying Zachariah2 Villalva's convictions are for the most part not
pertinent to this appeal. A jury convicted him of receiving a stolen vehicle (a 1998
Honda Civic) (§ 496d; count 1), obtaining personal identifying information with intent to
defraud (§ 530.5, subd. (c)(1); counts 3-5), and possessing burglary tools (§ 466; count
6). The Attorney General concedes that no evidence of the value or condition of the
stolen vehicle was introduced at trial.
1 Undesignated statutory references are to the Penal Code.
2 The public defender informed the court on February 13, 2018, that defendant's true
first name was "Zachariah" (as filed in case SCD721327), but that case SCD274607 had
been filed as "Riah." The plea form in SCD271327 is captioned, and defendant signed it,
as "Zachariah." Defendant also identifies himself as "Zachariah" in a letter to the court.
The verdict forms in SCD274607 and the abstract of judgment for both cases, however,
show defendant's name as "Riah." In light of these inconsistencies, we will remand the
matter to the trial court for a determination of defendant's true name and, if necessary,
correction of the abstract of judgment in that regard.

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In separate proceedings outside the jury's presence, Villalva admitted that with
respect to count 1 (receiving a stolen vehicle), he committed that offense while released
from custody on bail (§ 12022.1, subd. (b)), and he had previously been convicted of a
felony vehicle theft (§ 666.5, subd. (a)). Villalva also admitted two prison prior
convictions (§ 667.5, subd. (b)) and one prior strike (§ 667, subds. (b)-(i) & 1170.12).
At a sentencing hearing on these offenses, as well as on the case (SCD271327) in
which Villalva had pleaded guilty to burglary (§ 459), heroin possession (Health & Saf.
Code, § 11350, subd. (a)), and methamphetamine possession (Health & Saf. Code, §
11377, subd. (a)), the court sentenced Villalva to a combined prison term of 10 years four
months, which included eight years for his felony conviction under section 496d.
DISCUSSION
A. Relevant Statutes
"Proposition 47 was passed by voters at the November 4, 2014, General Election,
and took effect the following day. The measure's stated purpose was 'to ensure that
prison spending is focused on violent and serious offenses, to maximize alternatives for
nonserious, nonviolent crime, and to invest the savings generated from this act into
prevention and support programs in K–12 schools, victim services, and mental health and
drug treatment,' while also ensuring 'that sentences for people convicted of dangerous
crimes like rape, murder, and child molestation are not changed.'" (People v. DeHoyos
(2018) 4 Cal.5th 594, 597.)

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1. Petty theft
Proposition 47 created section 490.2, generally providing that all thefts of property
under $950 be petty thefts punishable only as a misdemeanor:
"Notwithstanding Section 487 or any other provision of law defining
grand theft, obtaining any property by theft where the value of the
. . . personal property taken does not exceed nine hundred fifty
dollars ($950) shall be considered petty theft and shall be punished
as a misdemeanor . . . ."3 (§ 490.2, subd. (a).)
2. Receiving stolen property
Before Proposition 47, section 496, receiving stolen property, gave the prosecution
discretion to charge the offense as a misdemeanor if the value of the property did not
exceed $950. (People v. Varner (2016) 3 Cal.App.5th 360, 366, rev. granted Nov. 22,
2016 & dism. Aug 9, 2017, S237679 (Varner).4 Proposition 47 amended section 496 to
provide that if the defendant receives "any property" that is $950 or less, the offense shall
be a misdemeanor except for some ineligible individuals:
"Every person who buys or receives any property that has been
stolen or that has been obtained in any manner constituting theft or
extortion, knowing the property to be so stolen or obtained . . . shall
be punished by imprisonment in a county jail for not more than one
year, or imprisonment pursuant to subdivision (h) of Section 1170.
However, if the value of the property does not exceed nine hundred
3 Certain repeat offenders are excepted from section 490.2.
4 The Supreme Court deferred briefing in Varner and held the case pending
disposition of People v. Romanowski (2017) 2 Cal.5th 903 (Romanowski). The court
dismissed Varner after issuing Romanowski. Upon the dismissal of review, the published
Court of Appeal opinion in Varner "regains binding or precedential effect under [Cal.
Rules of Court,] rule 8.115(e)(2)." (Com. to Cal. Rules of Court, rule 8.1115.)

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fifty dollars ($950), the offense shall be a misdemeanor . . . ."
(§ 496, subd. (a).)
3. Receiving a stolen vehicle
Proposition 47 did not amend section 496d, the statute under which Villalva was
convicted. That statute provides in part that a person who "receives any motor
vehicle . . . that has been obtained in any manner constituting theft . . . , knowing the
property to be stolen or obtained" shall be convicted of either a misdemeanor or a felony.
B. Villalva's Contentions
Villalva contends that his felony conviction for violating section 496d should be
reduced to a misdemeanor because there was no evidence the vehicle had a value over
$950, in effect making the crime a petty theft under section 490.2. He asserts that the
California Supreme Court's decisions in Romanowski, supra, 2 Cal.5th 903 and People v.
Page (2017) 3 Cal.5th 1175 (Page) compel the conclusion that section 490.2 should be
applied to section 496d and that we should follow People v. Williams (2018) 23
Cal.App.5th 641 (Williams), which held that Proposition 47 applies to section 496d.
C. Analysis
The interpretation of a voter initiative relies on "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

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ambiguous, courts may consider ballot summaries and arguments in determining the
voters' intent and understanding of a ballot measure." (People v. Superior Court
(Pearson) (2010) 48 Cal.4th 564, 571.)
We first consider whether the offense of receiving a stolen vehicle is encompassed
within section 490.2, the new petty theft statute. As noted, under section 490.2,
notwithstanding any other provision of law defining grand theft, "obtaining any property
by theft" where the property's value does not exceed $950 "shall be punished as a
misdemeanor."
In Romanowksi, supra, 2 Cal.5th 903, the court considered whether a conviction
under section 484e, subdivision (d) qualified for resentencing under section 490.2.
Section 484e, subdivision (d) provides that a person who "acquires or retains possession
of access card account information . . . validly issued to another person, without the
cardholder's or issuer's consent, with the intent to use it fraudulently, is guilty of grand
theft." (Italics added.) Because the statute in Romanowski explicitly defined theft of
access card information as grand theft, the court readily found the statute fell within
section 490.2, which by its own terms applies "[n]otwithstanding . . . any other provision
of law defining grand theft . . . ." (See discussion in People v. Soto (2018) 23
Cal.App.5th 813, 821 (Soto).)5
5 Villalva contends that in Romanowski, the court applied section 490.2 to an
offense, like section 496d, that does not include theft as an element. We disagree.
Romanowski considered section 484e, subdivision (d), which expressly states that crime
is "grand theft." (Romanowski, supra, 2 Cal.5th at p. 908.) Section 496d has no similar
language.

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Page, supra, 3 Cal.5th 1175 addressed whether Proposition 47 applied to a
conviction under Vehicle Code section 10851, a statute that encompasses both theft and
nontheft offenses (e.g., joyriding). Citing Romanowski, the court concluded that section
490.2 covers the theft form of violating Vehicle Code section 10851. (Page, at p. 1183.)
The teaching of Page, supra, 3 Cal.5th 1175 is that in determining whether section
490.2 applies, the focus is on the conduct being criminalized—whether such conduct is
theft—and not whether the particular statute under which the defendant was convicted
was expressly amended by Proposition 47. "[I]ndeed, the statute in Page was not even
located in the Penal Code." (Soto, supra, 23 Cal.App.5th at p. 822, italics omitted.)6
"Romanowski and Page consider whether stealing a particular type of property (access
card information or a vehicle) could constitute petty theft. Both cases involve crimes that
were previously classified as grand theft." (Soto, supra, 23 Cal.App.5th at p. 822.)
However, neither Romanowski nor Page considered Proposition 47 eligibility for an
offense "that is not identified as grand theft and requires additional necessary elements
beyond the theft itself." (Soto, at p. 822, italics omitted.)
Villalva was convicted under section 496d, which has three elements: (1) the
vehicle was stolen, (2) the defendant knew the vehicle was stolen, and (3) the defendant
had possession of the stolen vehicle. (People v. Russell (2006) 144 Cal.App.4th 1415,
1425, disapproved on another ground in People v. Covarrubias (2016) 1 Cal.5th 838,
874, fn. 14; In re Anthony J. (2004) 117 Cal.App.4th 718, 728.)
6 We thus agree with Villalva's assertion that the fact section 496d was not
expressly amended by Proposition is not determinative.

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Theft under California law is an unlawful taking. (Page, supra, 3 Cal.5th at p.
1182; People v. Gonzales (2017) 2 Cal.5th 858, 864-865.) Villalva was not charged with
or convicted of stealing the vehicle. Although receiving stolen property is a theft-related
crime, it is not a taking and is, therefore, not a theft. The person receiving the stolen
vehicle does not obtain it by theft. Indeed, a person cannot be convicted of stealing and
receiving the same property. (People v. Garza (2005) 35 Cal.4th 866, 875.) Thus,
because Villalva was convicted of receiving the stolen vehicle, he could not be convicted
of stealing that same vehicle.
Villalva's contention that section 496d is a theft crime is untenable. A violation of
section 496d is not based on the actual theft of the vehicle, but rather on acts committed
afterwards. The statute criminalizes buying, receiving, concealing, or withholding
vehicles that have already been obtained by theft. Section 490.2 proscribes "obtaining
any property by theft" while section 496d proscribes receiving a vehicle that has already
been stolen. Therefore, Villalva's conviction under section 496d is not petty theft under
section 490.2.
This conclusion is consistent with Varner, supra, 3 Cal.App.5th 360, where
Division Two of the Fourth District found "no indication that the drafters of Proposition
47 intended to include section 496d." (Id. at p. 366.) The Varner court pointed out that
Proposition 47 expressly amended the general receiving stolen property statute, section
496, subdivision (a), to classify a violation involving property valued at less than $950 as
a misdemeanor where it was a wobbler before. "If section 490.2 applied to receiving

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stolen property offenses, there would have been no need to amend section 496." (Varner,
at p. 367.)
The Varner court found further support for its conclusion because section 490.2
begins with the phrase "'[n]otwithstanding Section 487 or any other provision of law
defining grand theft.'" (Varner, supra, 3 Cal.App.5th at p. 367.) Given that broad
language, a person convicted of obtaining property by theft where the value of the
property taken is less than $950 is within the scope of Proposition 47. "The drafters of
Proposition 47 knew how to indicate when they intended to affect punishment for an
offense the proposition was not directly amending." (Varner, at p. 367.)
However, there is no equivalent prefatory language in section 496, subdivision
(a)—the general receiving stolen property statute. "This 'notwithstanding' language is
conspicuously absent from section 496, subdivision (a)." (Varner, supra, 3 Cal.App.5th
at p. 367.) Thus, there is nothing in section 496, subdivision (a) indicating that its
provisions are to apply to the entire subject of receiving stolen property. That the drafters
of Proposition 47 included such language in section 490.2 but did not include such
sweeping language in section 496, subdivision (a) strongly indicates that section 496 is
not to operate in the same fashion. Accordingly, "[b]ecause that provision contains no
reference to section 496d, we must assume the drafters intended section 496d to remain
intact and intended for the prosecution to retain its discretion to charge section 496d
offenses as felonies." (Varner, at p. 367.)
In Orozco, supra, 24 Cal.App.5th at page 674, we agreed with Varner, supra, 3
Cal.App.5th 360. We reaffirm that holding here and also note that People v. Bussey

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(2018) 24 Cal.App.5th 1056 (Bussey), review granted September 12, 2018, S250152, is in
accord with our decision.
Disagreeing with this analysis, Villalva relies on the First District's decision in
Williams, supra, 23 Cal.App.5th 641, which held that section 496d "is a theft statute" and
did not find "any logical basis" to distinguish for Proposition 47 purposes between the
receipt of stolen property generally (under section 496, subdivision (a)) and receipt of a
stolen vehicle. (Williams, at p. 649.) Relying on Romanowski, supra, 2 Cal.5th 903, the
court in Williams analogized section 496d to section 484e and found them both to be theft
statutes. (Williams, at pp. 649-650.)
We are not persuaded by the reasoning in Williams. That court did not
acknowledge that the offense described in section 484e, subdivision (d) is expressly
defined as "grand theft" and that alone brought it within section 490.2. Unlike section
484e, subdivision (d), the statute under which Villalva was convicted, section 496d does
not define that crime as a theft offense. Romanowski, supra, 2 Cal.5th 903 does not hold
or suggest that section 490.2 extends to offenses that do not constitute theft.
Moreover, although the court in Williams cites Page, supra, 3 Cal.5th 1175 for the
proposition that a vehicle is personal property (Williams, at p. 649), the Williams court
does not address that the statutory language interpreted in Page is not present in section
496d. The statute addressed in Page, section 490.2, subdivision (a), begins with the
phrase "[n]otwithstanding Section 487 or any other provision of law defining grand
theft." But there is no equivalent language in section 496, subdivision (a). As explained
in Page, Proposition 47 applies to certain violations of Vehicle Code section 10851

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because of the broad, preemptive language in section 490.2. Proposition 47 did not enact
similar language in the context of receiving stolen property. The lack of such a
provision, coupled with the fact that the initiative did not amend section 496d, is
dispositive.
Additionally, we disagree with the Williams court's conclusion that there is no
"logical" basis for distinguishing between receiving stolen property generally and
receiving a stolen vehicle for Proposition 47 purposes. (Williams, supra, 23 Cal.App.5th
at p. 649.) Individuals rely on their vehicles to get to work and to obtain life's necessities.
"The drafters may rationally have believed harsher treatment was warranted because
there are people who depend on this type of low-value vehicle for essential transportation
that they could not otherwise afford." (Bussey, supra, 24 Cal.App.5th at p. 1064, review
granted Sept. 12, 2018, S250152.)

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DISPOSITION
The judgment is affirmed. In light of inconsistencies in the record, the matter is
remanded to the trial court to determine defendant's true name and, if necessary, to
correct the abstract of judgment in that regard.
NARES, J.
WE CONCUR:
McCONNELL, P. J.
O'ROURKE, J.

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