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Name: People v. Bussey
Case #: C079797
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 06/27/2018
Subsequent History: Review granted 9/12/2018: S250152

On remand for reconsideration in light of People v. Page, Vehicle Code section 10851 conviction reversed because pattern jury instructions allowed jury to convict defendant of a felony violation without the necessary felony element findings. A week after a car was stolen from the owner, Bussey was stopped while driving the stolen car without license plates and he told police he received the car from a third party. He was charged with a number of offenses and a jury found him guilty of felony unauthorized taking or driving of a vehicle (Veh. Code, § 10851) and felony receiving a stolen vehicle (Pen. Code, § 496d). At Bussey’s trial, an officer testified that the car was probably valued between $301.00 and $4000. On appeal, Bussey argued both his offenses fall within the scope of Proposition 47 and should have been treated as misdemeanors (his trial occurred after Proposition 47 was enacted). The Court of Appeal affirmed. The Supreme Court granted review and transferred the case back to the Court of Appeal for reconsideration in light of People v. Page (2017) 3 Cal.5th 1175. Held: Reversed in part. Proposition 47 reclassified certain drug and theft-related felonies as misdemeanors. In Page the court held that Proposition 47’s petty theft provision (Pen. Code, § 490.2) applies to the theft form of a section 10851 violation, such that theft of a vehicle worth $950 or less is a misdemeanor. Because Bussey’s trial occurred after Proposition 47 was enacted, the question was whether he was properly convicted of a felony violation of section 10851, not whether he should be resentenced under section 1170.18. Relying upon People v. Gutierrez (2018) 20 Cal.App.5th 847, the Court of Appeal concluded Bussey was not properly convicted based on the pattern jury instructions, which failed to adequately distinguish the different elements for each way the offense can be violated as a felony. Nothing in the record indicated whether the jury based its verdict on a correct or incorrect theory. The section 10851 conviction was conditionally reversed, and the matter remanded for retrial. [Editor’s Note: Like Gutierrez, the court declined to follow In re D.N. (2018) 19 Cal.App.5th 898, which treated the issue as one of sufficiency of the evidence and as a result concluded any retrial was barred under principles of double jeopardy.]

Receipt of a stolen vehicle (Pen. Code, § 496d) does not fall within the scope of Proposition 47 even if the value of the vehicle is less than $950. Bussey also argued his conviction for receipt of a stolen vehicle should be reduced to a misdemeanor under Proposition 47 because the provisions of Penal Code section 496 for misdemeanor sentencing apply as a matter of law to the more specific section 496d. The Court of Appeal disagreed. A “person who buys or receives any property that has been stolen,” knowing that the property has been stolen, violates section 496. Proposition 47 amended section 496 to provide that the offense is a misdemeanor if the value of the stolen property is $950 or less. But it did not amend section 496d, which provides that every person who buys or receives a stolen vehicle may be charged with a felony. Section 496 does not include a “sweeping phrase” regarding the entire subject of knowing receipt of stolen property, similar to Penal Code section 490.2 and the definition of grand theft, which is “a strong signal” section 496 is not intended to operate in the same fashion. It is not a violation of equal protection principles to treat the theft of a car valued at $950 and less different than receiving a stolen car at the same value. “The difference in treatment between petty thieves and receivers of stolen property is easily rationalized.” The Penal Code section “496 series” is intended to dismantle the market for stolen goods, which is more dangerous and detrimental than a mere thief. As for the difference in treatment between receipt of a stolen car (Pen. Code, § 496d) and general receipt of stolen property (Pen. Code, § 496) “it is plausible that the drafters elected to proceed in an incremental way, gauging the effects of the proposition’s sea change in penal law, and—in light of the small number of functioning vehicles worth under $950 at present values—did not consider it an injustice to fail to include them and instead leave the matter to the charging discretion of prosecutors.” [Editor’s Note: On 9/12/2018, the California Supreme Court granted review in this case and deferred briefing pending decision in People v. Orozco (2018) 24 Cal.App.5th 667, review granted 8/15/2018 (S249495/D067313), which presents the following issue: Can a felony conviction for receiving a stolen vehicle in violation of Penal Code section 496d be reclassified as a misdemeanor under Proposition 47 in light of Penal Code section 496, subdivision (a), which provides that receiving other stolen property is a misdemeanor when the value of the property does not exceed $950?]

The full opinion is available on the court’s website here: