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People v. Wehr

California Court of Appeals, Fourth District, Second Division

October 15, 2019

THE PEOPLE, Plaintiff and Respondent,
ROBERT KENNETH WEHR, Defendant and Appellant.

          APPEAL from the Superior Court of San Bernardino County. No. FWV17002975 Dan W. Detienne, Judge. Affirmed in part, reversed in part.

          Eric E. Reynolds, under appointment by the Court of Appeal, for Defendant and Appellant.

          Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.


          MENETREZ, J.

         This case concerns a conflict between the general statute criminalizing receipt of stolen property, Penal Code section 496, [1] and the more specific statute criminalizing receipt of a stolen vehicle, section 496d. The Safe Neighborhoods and Schools Act (Proposition 47) amended section 496 so that receiving any stolen property worth $950 or less is a misdemeanor. (§ 496, subd. (a).) Receipt of a stolen vehicle is a so-called wobbler, or an offense that may be punished as either a felony or a misdemeanor. (§ 496d, subd. (a); People v. Franco (2018) 6 Cal.5th 433, 436.) We must determine which statute governs when a defendant receives a stolen vehicle worth $950 or less.

         The defendant in this case, Robert Kenneth Wehr, was convicted of receiving a stolen vehicle under section 496d, subdivision (a). Before his sentencing, Wehr moved to designate his conviction a misdemeanor under Proposition 47. The trial court denied his motion and sentenced him to a total of nine years in state prison, including sentence enhancements.

         Wehr challenges the court's denial of his motion. He argues that his offense is eligible for misdemeanor treatment under section 496 if the value of the stolen vehicle does not exceed $950. In People v. Varner (2016) 3 Cal.App.5th 360 (Varner), this court rejected a similar claim and held that a felony conviction for receipt of a stolen vehicle was categorically ineligible for misdemeanor treatment under Proposition 47.[2] (Id. at pp. 366-367.) But since Varner, our Supreme Court has decided People v. Page (2017) 3 Cal.5th 1175 (Page). Page resolved an analogous conflict between the general petty theft statute enacted by Proposition 47 (§ 490.2) and a more specific preexisting statute criminalizing theft of a vehicle (Veh. Code, § 10851). (Page, supra, at pp. 1179-1180.) The Page court held that the general petty theft statute controls if the stolen vehicle is worth $950 or less. (Id. at pp. 1180, 1187.)

         Page establishes that our reasoning in Varner was unsound, and we therefore decline to follow Varner. We agree with Wehr that, after the passage of Proposition 47, receipt of a stolen vehicle is eligible for misdemeanor treatment under section 496, assuming that the vehicle is worth $950 or less. We thus reverse his felony conviction for violating section 496d. On remand, the People may (1) accept reduction of this conviction to a misdemeanor, or (2) retry him for a felony violation of section 496d. We affirm the judgment in all other respects.


         In July 2017, deputy sheriffs found Wehr in a stolen 1985 Dodge Prospector pickup truck. Wehr's backpack was in the truck and contained about 2.5 grams of methamphetamine. He did not have a key to the truck and started it by “wiggling the ignition.” He said that someone had given him the truck to repair it, but he did not know the person's name, could not describe the person, and had no contact information for the person. The record contains no evidence of the truck's value.

         Wehr's trial took place in October 2017. In addition to his conviction for receiving a stolen vehicle, the jury convicted him of possession of a controlled substance. (Health & Saf. Code, § 11377.) After a court trial, the court found true a prior strike allegation and five prior prison term allegations.

         Wehr's sentencing occurred in March 2018. At his sentencing hearing, the court referenced an email from defense counsel in which Wehr apparently moved to reduce his felony conviction for receiving a stolen vehicle to a misdemeanor. The record does not contain this email or any written motion to this effect. But according to the court's description of the email, Wehr was relying on Page, which our Supreme Court decided the month after his trial. (Page, supra, 3 Cal.5th at p. 1175.)

         Wehr argued that, under Page, the prosecution had the burden of proving that the stolen property was worth more than $950, and because there was no evidence of the value of the truck, the court had to reduce his felony conviction. The trial court denied the motion, relying on this court's decision in Varner.

         For possession of a controlled substance, a misdemeanor, the court sentenced Wehr to 306 days in jail and credited him with 306 days for time served. Wehr's nine-year prison sentence consisted of the middle term of two years for receiving a stolen vehicle, doubled to four years for the prior strike, plus five consecutive one-year terms for the five prison priors.


         Wehr's claim of error requires us to interpret various statutes and provisions of Proposition 47, so it presents questions of law that we review de novo. (People v. Gonzales (2018) 6 Cal.5th 44, 49.) “In construing the initiative, ‘we apply the same principles that govern statutory construction.' [Citation.] As a law adopted by the voters, ‘their intent governs.' [Citation.] In ascertaining that intent, ‘we turn first to the language of the statute, giving the words their ordinary meaning.' [Citation.] This language is interpreted in the context of the statute as a whole, as well as the overall statutory scheme.” (People v. Valenzuela (2019) 7 Cal.5th 415, 423.) To the extent that the statutory language is ambiguous, we may glean the voters' intent from extrinsic sources like the uncodified text of Proposition 47 or the Legislative Analyst's statements in the voter guide. (People v. Romanowski, supra, 2 Cal.5th at pp. 909-910.)


         I. Proposition 47 Background

         Effective November 2014, Proposition 47 reduced certain theft- and drug-related offenses from felonies or wobblers to misdemeanors. (People v. Valencia (2017) 3 Cal.5th 347, 351.) The measure's stated purpose was “to ensure that prison spending is focused on violent and serious offenses” and “to maximize alternatives for nonserious, nonviolent crime.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 2, p. 70.) In uncodified sections of the measure, the voters directed that Proposition 47 be construed “broadly” and “liberally” to accomplish its purposes. (Voter Information Guide, Gen. Elec., supra, text of Prop. 47, §§ 15, 18, p. 74; Page, supra, 3 Cal.5th at p. 1187.)

         Proposition 47 amended section 496, which punishes “[e]very person who buys or receives any property that has been stolen.” (§ 496, subd. (a).) Before Proposition 47, buying or receiving stolen property worth $950 or less was a wobbler. (Former § 496, as amended by Stats. 2011, ch. 15, § 372.) The measure redesignated the same offense a misdemeanor, except in the case of certain violent or serious recidivists.[3] (§ 496, subd. (a).)

         Section 496d, the section under which Wehr was convicted, punishes buying or receiving certain types of stolen property, namely, vehicles, trailers, special construction equipment, or other vessels. (§ 496d, subd. (a).) Proposition 47 did not amend section 496d. The section makes receiving a stolen vehicle a wobbler without reference to the vehicle's value.[4] (§ 496d, subd. (a).)

         Proposition 47 also added a new section to the Penal Code, section 490.2, defining petty theft and making the offense a misdemeanor. Section 490.2 states that “[n]otwithstanding 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).) Like ...

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