Metropolitan News-Enterprise


Tuesday, November 10, 2015


Page 1


Stolen Vehicle Charge Unaffected by Prop. 47—C.A.




Receipt of a stolen vehicle, in violation of Penal Code §496d(a), remains punishable as a felony under Proposition 47, the Fourth District Court of Appeal ruled yesterday.

Div. Two affirmed San Bernardino Superior Court Judge Brian McCarville’s denial of Scott Garness’s motion to reduce his 2013 felony conviction under the statute to a misdemeanor.

Garness, who pled no contest to the offense, argued in his motion that because the stipulated value of the vehicle was $540, he was entitled to resentencing. Proposition 47 retroactively provides that listed property offenses, unless committed by certain ineligible defendants, are misdemeanors where the value of the property is less than $950.

McCarville ruled earlier this year that Garness was not entitled to be resentenced because §496d is not among the statutes listed in Proposition 47. The Court of Appeal agreed.

The defense argued that because the similar §496, which also deals with property offenses, was amended by Proposition 47 to reduce those offenses to misdemeanors when the $950 threshold wasn’t crossed , it must have been the intent of the measure to similar reduce the punishment under §496d.

But Justice Thomas Hollehorst, in his opinion for the Court of Appeal, said the argument was incompatible with the plain language approved by the voters.

Proposition 47, the justice wrote, “provides a mechanism for an offender to request to be resentenced ‘in accordance with’ certain enumerated sections that were amended or added by Proposition 47, and which provide for different, lesser punishment than applied before the enactment of Proposition 47….

“As noted, the statutory language setting the punishment for violations of section 496d remains the same, before and after Proposition 47, and is not included among the enumerated sections amended or added by Proposition 47.  Defendant therefore could not be resentenced in accordance with any of the sections added or explicitly amended by Proposition 47.  Put another way:  Exactly the same sentencing considerations apply to defendant’s conviction offense before and after Proposition 47, so there is no basis for reconsidering or reducing the sentence that was initially imposed.”

Besides, the justice wrote, the fact that two Penal Code sections overlap doesn’t mean that a defendant who could have been charged under either section is entitled to the benefit of the section that provides for lesser punishment.

While the policy arguments that motivated reduction of the punishment for other offenses maybe applicable to Garness’s, he elaborated, there is nothing in the initiative to suggest that the intent was “not only to reduce the punishment for certain specified offenses, but also any similar offenses, or offenses that could have been, but were not, charged as one of the specified offenses.”

The case is People v. Garness, 15 S.O.S. 5321.


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