Filed 9/23/16 P. v. Poles CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F070868
         Plaintiff and Respondent,
                                                                            (Super. Ct. No. VCF267795B)
                   v.

KEON JEROME POLES,                                                                       OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Tulare County. Gary L.
Paden, Judge.
         Rachel Varnell, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, and Lewis A. Martinez, Deputy
Attorney General, for Plaintiff and Respondent.
                                                        -ooOoo-


*        Before Levy, Acting P.J., Kane, J. and Poochigian, J.
       Appellant Keon Jerome Poles appeals from the denial of his petition for
resentencing under Penal Code section 1170.18, seeking modification of the sentence
imposed on his prior convictions for receiving a stolen vehicle (Pen. Code, § 496d,
subd. (a)). Appellant contends the failure to modify his sentences violates principles of
equal protection. For the reasons set forth below, we affirm.
                 FACTUAL AND PROCEDURAL BACKGROUND
       On November 13, 2014, appellant petitioned to have several prior felony
convictions reduced to misdemeanors under Penal Code section 1170.18. Appellant had
previously suffered, among others, four convictions for receiving stolen automobiles
(Pen. Code, § 496d, subd. (a)), one conviction for petty theft with a prior (Pen. Code,
§ 666), and one conviction for possession of a controlled substance (Health & Saf. Code,
§ 11350). The trial court granted appellant’s request with respect to his convictions for
petty theft with a prior and possession of a controlled substance. However, the court
rejected appellant’s request with respect to the four prior convictions for receiving stolen
vehicles, concluding that Penal Code section 1170.18 did not extend to such convictions.
       This appeal timely followed.
                                      DISCUSSION
       Appellant contends the trial court wrongly denied his petition for resentencing.
He claims his sentence violates equal protection principles and must be reduced to a
misdemeanor because there is no rational basis why his convictions under Penal Code
section 496d, subdivision (a), should not be eligible for resentencing under Penal Code
section 1170.18 when similar convictions under Penal Code section 496 are eligible.
Standard of Review and Applicable Law
       “The concept of equal treatment under the laws means that persons similarly
situated regarding the legitimate purpose of the law should receive like treatment.
[Citation.] ‘“The first prerequisite to a meritorious claim under the equal protection
clause is a showing that the state has adopted a classification that affects two or more

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similarly situated groups in an unequal manner.” [Citations.] This initial inquiry is not
whether persons are similarly situated for all purposes, but “whether they are similarly
situated for purposes of the law challenged.”’” (People v. Morales (2016) 63 Cal.4th
399, 408 (Morales).)
       If this showing is met, a further analysis is undertaken. “‘The concept [of equal
protection] recognizes that persons similarly situated with respect to the legitimate
purpose of the law receive like treatment, but it does not … require absolute equality.
[Citations.] Accordingly, a state may provide for differences as long as the result does
not amount to invidious discrimination.’” (People v. Cruz (2012) 207 Cal.App.4th 664,
675.) “‘In resolving equal protection issues, the United States Supreme Court has used
three levels of analysis. Distinctions in statutes that involve suspect classifications or
touch upon fundamental interests are subject to strict scrutiny, and can be sustained only
if they are necessary to achieve a compelling state interest. Classifications based on
gender are subject to an intermediate level of review. But most legislation is tested only
to determine if the challenged classification bears a rational relationship to a legitimate
state purpose.’” (Ibid.)
       The determination of a statute’s constitutionality is a question of law and is thus
considered de novo. (People v. Health Laboratories of North America, Inc. (2001) 87
Cal.App.4th 442, 445.)
Denying Appellant’s Resentencing Request Is Not an Equal Protection Violation
       Appellant contends the eligibility differences when seeking a reduction in
punishment for prior convictions under Penal Code sections 496 and 496d following the
passage of Proposition 47 violate equal protection. Specifically, appellant argues there is
“no logical reason that a person convicted of receiving stolen property worth less than
$950 would benefit from Proposition 47, whereas someone who received a stolen vehicle
worth less than $950 would not.” We disagree.



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       Appellant cannot show that two similarly situated groups are being treated
differently for the purposes of the relevant law. For appellant’s argument to succeed, he
must demonstrate that Penal Code section 1170.18 violates equal protection because
persons convicted of receiving stolen property worth less than $950 are similarly situated
to persons convicted of receiving stolen automobiles worth less than $950, yet are being
treated differently because they are not eligible for resentencing.1 The case law holds
otherwise.
       Our Supreme Court has noted why there is no equal protection obligation to make
revised sentencing provisions retroactive in the context of Proposition 47. “Persons
resentenced under Proposition 47 were serving a proper sentence for a crime society had
deemed a felony (or a wobbler) when they committed it. Proposition 47 did not have to
change that sentence at all. Sentencing changes ameliorating punishment need not be
given retroactive effect. ‘“The Legislature properly may specify that such statutes are
prospective only, to assure that penal laws will maintain their desired deterrent effect by
carrying out the original prescribed punishment as written.”’” (Morales, supra, 63
Cal.4th at pp. 408–409.). The fact that the electorate chooses to permit some convictions
to be retroactively reduced, but not others, does not show an equal protection violation
because the electorate’s legitimate choice regarding which convictions receive retroactive
application differentiates the groups. (See People v. Floyd (2003) 31 Cal.4th 179, 191
[“‘[T]he 14th Amendment does not forbid statutes and statutory changes to have a
beginning, and thus to discriminate between the rights of an earlier and later time.’”].)




1       Appellant frames the argument as an assertion “that the disparate treatment of Penal Code
sections 496 and 496d by Penal Code section 1170.18 violates equal protection.” This framing
does not change the analysis, but equal protection is an individual right attaching to persons, not
statutes.


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       Appellant’s reliance on People v. Noyan (2014) 232 Cal.App.4th 657 (Noyan) is
likewise misplaced.2 In Noyan, the court was not faced with determining the impact of a
retroactive application of sentencing changes but, rather, with the impact of legislative
changes on sentencing for postchange convictions. (Noyan, supra, at pp. 663–664.) In
addition, Noyan involved similar crimes that did not overlap, but shared the same goal of
excluding contraband from prisons. (Id. at pp. 666–667.) Here, in contrast, the two
crimes overlap, as receiving a stolen vehicle can be charged under either Penal Code
section 496 or section 496d, creating two potential criminal statutes under which a
defendant can be charged. Under the instruction of United States v. Batchelder (1979)
442 U.S. 114, the California Supreme Court has held that “neither the existence of two
identical criminal statutes prescribing different levels of punishments, nor the exercise of
a prosecutor’s discretion in charging under one such statute and not the other, violates
equal protection principles.” (People v. Wilkinson (2004) 33 Cal.4th 821, 838.)3

2       Through letter briefing and oral argument, counsel for appellant has referred us to four
decisions from sister districts involving Proposition 47 claims, which are pending before the
California Supreme Court: People v. Garness (2015) 241 Cal.App.4th 1370, review granted
January 27, 2016, S231031; People v. Nichols (2016) 244 Cal.App.4th 681, review granted
April 20, 2016, S233055; People v. Peacock (2015) 242 Cal.App.4th 708, review granted
February 17, 2016, S230948; and People v. Romanowski (2015) 242 Cal.App.4th 151, review
granted January 20, 2016, S231405. We note that under former rule 8.1115(e)(1) of the
California Rules of Court, in effect at the time review was granted, these cases have been
depublished. Regardless, we have reviewed these cases, recognizing none is persuasive or
binding authority. (See Cal. Rules of Court, rule 8.1115(e)(1).) As appellant noted at oral
argument, Nichols and Peacock both conclude, as we do here, that no equal protection violation
exists. Garness did not consider that issue, merely finding a conviction under section 496d is not
covered by Proposition 47, and adds no support to appellant’s claim. Romanowski dealt with
whether theft of access card information is covered by Proposition 47’s reduction of certain
felony theft crimes to misdemeanors despite not being explicitly named in the enacted statute.
Although appellant claims the analysis supports his position, we find the analysis distinguishable
given that Proposition 47 expressly modified all crimes defined as grand theft but not all crimes
involving receipt of stolen property.
3       Even if it was shown that two similarly situated groups were being treated differently,
there appears to be a rational basis for punishing the receipt of stolen vehicles differently than the
receipt of stolen property generally. The theft of one’s vehicle can substantially harm those most
vulnerable in society, who may rely heavily on their vehicles to survive. Even if punishments for

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       Absent an argument that one was “singled out deliberately for prosecution on the
basis of some invidious criterion,” there is no cognizable claim that equal protection
principles have been violated due to different statutes providing different penalties for
similar conduct. (Manduley v. Superior Court (2002) 27 Cal.4th 537, 568 [continuing on
to reject claim that two otherwise identical classes of juveniles are created based on
decision whether to charge in juvenile or adult court].) No such additional allegations
have been made here and, thus, there has been no showing sufficient to trigger a further
equal protection inquiry.
                                         DISPOSITION
       The judgment is affirmed.




stealing vehicles are reduced, there is still a rational incentive to eliminate the source of income
that makes those thefts worth the criminal risk. Thus, increased potential punishments for
receiving stolen vehicles can assist with public policy goals that are not necessarily present in all
receipt of stolen property cases. (See People v. Wilkinson, supra, 33 Cal.4th at p. 840 [decision
of how long a particular punishment should be is left to the Legislature, provided they act
rationally].) We reject appellant’s contention that strict scrutiny would apply merely because
potential differences in prison time are involved. (Id. at p. 838 [“‘We do not read [People v.]
Olivas [(1976) 17 Cal 3d 236] as requiring the courts to subject all criminal classifications to
strict scrutiny requiring the showing of a compelling state interest therefor.’”].)


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