Filed 5/31/16 P. v. Ramos CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G051359

         v.                                                            (Super. Ct. No. 11CF1509)

MANUEL GARCIA RAMOS,                                                   OPINION

     Defendant and Appellant.



                   Appeal from an order of the Superior Court of Orange County, Jonathan
S. Fish, Judge. Affirmed.
                   Alissa Bjerkhoel, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and
Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
               Manuel Garcia Ramos appeals from an order denying his petition for
resentencing relief under Proposition 47. He contends the trial court erred in finding his
conviction for receiving a stolen vehicle is outside the scope of the initiative, but we
disagree and affirm the order.
                                 PROCEDURAL BACKGROUND
               In 2011, appellant was charged in a felony complaint with receiving a
stolen vehicle in violation of Penal Code section 496d.1 It was also alleged he had served
two prior prison terms. (§ 667.5, subd. (b).) As part of a plea agreement, appellant
admitted the charges, and one of the prison priors was dismissed. The factual basis for
the plea states appellant “did knowingly & unlawfully buy/receive/conceal/sell/withhold
a Honda Accord which [he] knew to be stolen.” The trial court sentenced appellant to a
two-year prison term, to be served concurrently with a sentence he received in another
case.
               Following the passage of Proposition 47 in November 2014, appellant
petitioned the trial court to have his conviction reduced to a misdemeanor. Although
Proposition 47 does not expressly apply to violations of section 496d, appellant argued
the initiative was applicable to him to the extent it made the theft of property valued at
$950 or less a misdemeanor. Appellant also claimed he was entitled to Proposition 47
relief as a matter of equal protection. The court denied his petition.
                                              DISCUSSION
               Appellant renews his claims regarding the scope of Proposition 47 and his
entitlement to equal protection under the law. However, we see no basis for disturbing
the trial court’s ruling.
               “Proposition 47 reclassifie[d] as misdemeanors certain non-serious,
nonviolent crimes that previously were felonies, and authorizes trial courts to consider


        1      All further statutory references are to the Penal Code.


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resentencing anyone who is currently serving a sentence for any of the listed offenses.”
(People v. Awad (2015) 238 Cal.App.4th 215, 218.) The list of reclassified crimes
includes receiving stolen property under section 496, but it does not include the crime of
receiving a stolen vehicle under section 496d. (§ 1170.18, subds. (a), (b).)
              Proposition 47 also redrew the boundary line between grand and petty theft
by adding section 490.2 to the Penal Code. That provision states, “Notwithstanding
[s]ection 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).) Appellant contends section 490.2
encompasses convictions for receiving a stolen vehicle under section 496d when the
vehicle’s value does not exceed $950. He also claims his case should be remanded to
allow the trial court to determine the value of the vehicle he received.
              We do not agree with appellant’s contentions. However, we also recognize
the California Supreme Court is currently considering whether persons convicted under
section 496d are entitled to relief pursuant to Proposition 47. (See People v. Nichols
(2016) 244 Cal.App.4th 681, rev. granted Apr. 20, 2016, S233055; People v. Peacock
(2015) 242 Cal.App.4th 708, rev. granted Feb. 17, 2016, S230948; People v. Garness
(2015) 241 Cal.App.4th 1370, rev. granted Jan. 27, 2016, S231031.) Therefore, our
analysis will be relatively brief.
              The main reason for not construing Proposition 47 to include violations of
section 496d is that the initiative simply does not include that offense within its terms.
The fact Proposition 47 references several other offenses, including receiving stolen
property under section 496, but omits the crime of receiving a stolen vehicle under
section 496d is strong evidence the initiative was not intended to encompass the latter
offense. (See People v. Gray (1979) 91 Cal.App.3d 545, 551 [the inclusion of some



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offenses in a criminal statute reflects the intent to exclude those offenses which are not
specifically enumerated].)
              Granted, Proposition 47 added section 490.2 to ameliorate the punishment
for a host of crimes that are not listed in the initiative. However, by its terms, section
490.2 applies only to theft offenses. Unlike those offenses, which involve an unlawful
taking, the crime of receiving a stolen vehicle is committed whenever a person “buys or
receives” a motor vehicle he knows has been stolen, or “conceals, sells, withholds, or aids
in concealing, selling, or withholding” any such vehicle from the owner. (§ 496d, subd.
(a).) Because a person who is convicted of receiving a stolen vehicle need not have
obtained the subject vehicle by means of theft, and because there is nothing in the record
indicating appellant actually stole the car he was convicted of receiving, his conviction
does not come within the ambit of section 490.2. This is true even in the off chance the
value of the vehicle appellant received was less than $950. Therefore, a remand for
valuation is not required.
              Appellant’s fallback position is that equal protection principles require his
section 496d conviction to be treated like a violation of 496, the general receiving stolen
property statute, which, as noted above, is expressly included within the terms of
Proposition 47. Appellant is correct that receiving a stolen vehicle can be charged under
either one of these provisions. However, that does not create a constitutional problem; it
simply raises the issue of prosecutorial discretion. The law is well established that
prosecutors have considerable leeway in terms of choosing which crime to charge when
the defendant’s conduct violates more than one statute. (People v. Wilkinson (2004) 33
Cal.4th 821, 838.) So, unless the defendant can show that by charging him with one
offense rather than another the prosecutor signaled him out for differential treatment
based on some invidious criterion, no equal protection violation will be found. (Id. at p.
839.) Appellant has failed to make such showing in this case. Accordingly, his equal
protection claim cannot prevail.

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                                       DISPOSITION
               The trial court’s order denying appellant’s petition for Proposition 47 relief
is affirmed.



                                                  BEDSWORTH, ACTING P. J.

WE CONCUR:



MOORE, J.



THOMPSON, J.




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