Filed 3/28/16 P. v. Ramirez CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                         H042374
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1484940)

         v.

DAVID ANTHONY RAMIREZ,

         Defendant and Appellant.


         Defendant David Anthony Ramirez appeals from the denial of his petition for
resentencing under Proposition 47. (Pen. Code, § 1170.18.)1 Defendant contends
Proposition 47 makes him eligible for resentencing on his conviction for receiving a
stolen vehicle under section 496d. The trial court denied the petition on the ground that a
conviction under section 496d does not meet Proposition 47’s eligibility criteria as a
matter of law.
         In support of his claim that he is eligible for resentencing, defendant contends the
offense of receiving a stolen vehicle worth $950 or less was implicitly included in
Proposition 47’s amendment of section 496, subdivision (a), which makes the receipt of
stolen property valued at $950 or less punishable as a misdemeanor. He also contends
that the denial of his petition for resentencing violated his equal protection rights.




         1
             Subsequent undesignated statutory references are to the Penal Code.
       This court recently considered and rejected these arguments in People v. Nichols
(2016) 244 Cal.App.4th 681 (Nichols). For the reasons set forth in Nichols, we find
defendant’s claims without merit. Accordingly, we will affirm the judgment.
                                 I. PROCEDURAL BACKGROUND2
       On June 9, 2014, the prosecution charged defendant by an amended felony
complaint (the operative charging document) alleging that defendant committed the
following offenses on October 25, 2013: Count One—Participating in a criminal street
gang (§186.22, subd. (a)); Count Two—Receiving a stolen motor vehicle, a 1995 Honda
Accord (§ 496d); Count Three—Misdemeanor possession of a dirk or dagger (§ 21310);
Count Four—Misdemeanor possession of ammunition by a prohibited person (§30305,
subd. (a)(1)); Count Five—Possession of burglar tools (§ 466); and Count Six—
Misdemeanor resisting, delaying, or obstructing a police officer (§ 148, subd. (a)(1)). As
to Count Two, the complaint alleged defendant had suffered a prior conviction for theft
of a motor vehicle under Vehicle Code section 10851. (§ 666.5.) The complaint further
alleged defendant had suffered: (1) two prior convictions for assault with a deadly
weapon on a peace officer, constituting serious or violent felonies (§§ 667.5, subd. (c),
1192.7, subd. (c)); (2) a prior conviction for assault with a deadly weapon on a peace
officer, constituting a serious felony (§§ 667, subd. (a), 1192.7); and (3) two prior prison
terms (§ 667.5, subd. (b)).
       On July 1, 2014, in accord with a plea agreement, defendant pleaded no contest to
Counts Two through Six and admitted all enhancements. On Count Two, the court
imposed a total term of four years, equal to double the mitigated term of two years. On
Counts Three through Six, the court imposed 60 days in county jail on each count, all
concurrent with the term on Count Two. The court dismissed Count One and struck the
punishment for the two prior prison terms.



       2
           The facts of the offense are not set forth in the record.
                                                 2
       On January 16, 2015, defendant petitioned the trial court under Proposition 47 to
recall his sentence. The trial court denied the petition on the ground that Section 496d
was not included in the offenses eligible for resentencing under Proposition 47.
Defendant appeals from the trial court’s denial of his petition.
                                        II. DISCUSSION
   A. Statutory Eligibility for Resentencing under Proposition 47
       Defendant contends his conviction for receiving a stolen vehicle under section
496d is eligible for resentencing based on amendments made by Proposition 47 to a
closely related section of the Penal Code––section 496, subdivision (a)––which prohibits
the receipt of stolen property generally. The Attorney General responds that Proposition
47 did not amend section 496d to make receipt of a stolen vehicle eligible for
resentencing.
       1. Background
       In November 2014, the voters enacted Proposition 47, the Safe Neighborhoods
and Schools Act, which reduced certain drug- and theft-related offenses to
misdemeanors. As relevant here, the act amended section 496, which prohibits the
receipt of stolen property. Newly amended section 496, subdivision (a) provides that, “if
the value of the property does not exceed nine hundred fifty dollars ($950), the offense
shall be a misdemeanor, punishable only by imprisonment in a county jail not exceeding
one year . . . .”3 (§ 496, subd. (a).) Proposition 47 also created a new resentencing
scheme for persons serving felony sentences for offenses which were made
misdemeanors by the act. (§ 1170.18, subd. (a).) Under the new resentencing scheme, a
person currently serving a sentence for a felony conviction may petition for recall of his
or her sentence if the person would have been guilty of a misdemeanor had Proposition
47 been in effect at the time of the offense.


       3
        This subdivision excludes certain categories of persons from misdemeanor
sentencing. Defendant’s petition states he is not such a person.
                                                3
       2. Receipt of a Stolen Vehicle Under Section 496d Was Not Included in
          Proposition 47’s Resentencing Scheme
       The issue of defendant’s eligibility for resentencing is a question of statutory
construction. “Statutory construction is a question of law which we decide
independently. [Citation.] Our role in construing any statute is to ascertain the
Legislature’s intent and effectuate the purpose of the law. Generally, we accomplish this
task by giving the statutory words their usual, ordinary meanings. [Citation.] ‘ “If the
words of the statute are clear, the court should not add to or alter them to accomplish a
purpose that does not appear on [its] face . . . or from its legislative history.” ’
[Citation.]” (People v. Love (2005) 132 Cal.App.4th 276, 284.) “Additionally, we
consider the maxim expressio unius est exclusio alterius: ‘The expression of some things
in a statute necessarily means the exclusion of other things not expressed. [Citation.]
Under that maxim, where the Legislature expressly includes certain criminal offenses in a
statute, the legislative intent was to exclude offenses that were not mentioned.” (Nichols,
supra, 244 Cal.App.4th at p. 688.)
       In Nichols, supra, this court applied these principles to the same claim raised by
defendant here. We concluded that because section 1170.18 expressly includes certain
theft-related offenses (§§ 459.5, 473, 476a, 490.2, 496, & 666), the voters did not intend
to include other theft-related offenses such as section 496d. We also rejected the
argument that the rule of lenity applies in this analysis. We thus concluded that a
defendant convicted of receipt of a stolen vehicle under section 496d is not eligible for
resentencing under Proposition 47.
       We adopt Nichols’ holding and will apply it here. For the reasons set forth in
Nichols, we conclude defendant is not eligible under Proposition 47 for resentencing of
his conviction under section 496d.




                                               4
   B. The Denial of Defendant’s Petition for Resentencing Did Not Violate his Equal
      Protection Rights
       Defendant contends the denial of a petition for resentencing of a conviction under
section 496d violates his constitutional right to equal protection because there is no
justification for punishing defendants differently based on whether they are convicted
under section 496 or 496d. The Attorney General responds that the denial of defendant’s
petition did not violate his equal protection rights because the voters had a rational basis
to support the challenged classification.
       Defendant argues that the proper standard for analyzing his equal protection claim
is strict scrutiny, not rational basis, because the classification affects his fundamental
right to liberty. For this proposition, he relies on People v. Olivas (1976) 17 Cal.3d 236
(Olivas) [personal liberty is a fundamental interest protected under both the California
and United States Constitutions]. In the years since Olivas was decided, however, our
Supreme Court has applied its holding narrowly. In People v. Wilkinson (2004)
33 Cal.4th 821, the court observed that “[t]he language in Olivas could be interpreted to
require application of the strict scrutiny standard whenever one challenges upon equal
protection grounds a penal statute or statutes that authorize different sentences for
comparable crimes, because such statutes always implicate the right to ‘personal liberty’
of the affected individuals. Nevertheless, Olivas properly has not been read so broadly.”
(Id. at p. 837.) The court concluded: “We do not read Olivas as requiring the courts to
subject all criminal classifications to strict scrutiny requiring the showing of a compelling
state interest therefor.” (Id. at p. 838, quoting People v. Davis (1979) 92 Cal.App.3d 250,
258.) The court held that the rational basis standard applies to sentencing disparities of
the type alleged here. (Ibid.)
       Applying the rational basis test in Nichols, supra, this court concluded a rational
basis exists for treating the receipt of a stolen vehicle more harshly than the receipt of
other stolen property, even where the value of the stolen property is less than $950 in
both cases. “One reason is that the offense of buying or receiving a stolen motor vehicle

                                               5
may have greater consequences for the victims than other theft related offenses. The
owners of motor vehicles are often dependent on their vehicles for transportation to work
and school, and for obtaining the necessities of life . . . .” (Nichols, supra, 244
Cal.App.4th at p. 690.) Another reason is that stolen vehicles are often dismantled and
sold for parts in so-called “chop shops.” (Ibid.) Prosecutorial discretion is yet another
justification for disparate punishments. (Ibid.)
       For the reasons set forth in Nichols, we conclude the denial of defendant’s petition
for resentencing of his section 496d conviction did not violate his constitutional right to
equal protection of the law.
                                      III.   DISPOSITION
       The judgment is affirmed.




                                              6
                           _______________________________
                           Márquez, J.




     WE CONCUR:




______________________________
 Premo, Acting P.J.




______________________________
 Grover, J.
