Filed 8/18/20 P. v. Wehr CA4/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



 THE PEOPLE,

          Plaintiff and Respondent,                                      E070345

 v.                                                                      (Super.Ct.No. FWV17002975)

 ROBERT KENNETH WEHR,                                                    OPINION

          Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Dan Detienne,

Judge. Affirmed in part, sentence vacated and remanded with directions.

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

Appellant.

         Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Eric A.

Swenson and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.

         A jury convicted Robert Kenneth Wehr of a felony count of receiving a stolen

vehicle. (Pen. Code, § 496d, subd. (a); unlabeled statutory citations refer to this code.)


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Before his sentencing, Wehr moved to reduce his conviction to a misdemeanor under the

Safe Neighborhoods and Schools Act (Proposition 47). The trial court denied his motion

and sentenced him to a total of nine years in state prison, including enhancements for five

prior prison terms.

       Wehr challenges the trial court’s denial of his Proposition 47 motion. In our

original opinion, we agreed with Wehr. The California Supreme Court granted review of

our opinion and deferred action pending its decision in People v. Orozco (2020) 9 Cal.5th

111 (Orozco). The Supreme Court has now transferred the matter back to us with

directions to vacate our original opinion and reconsider Wehr’s appeal in light of Orozco.

Having done so, we conclude that Wehr is ineligible for Proposition 47 relief. But recent

amendments to the statute imposing enhancements for prior prison terms (§ 667.5, subd.

(b)) require the trial court to resentence Wehr. We thus vacate his sentence and remand

for resentencing but otherwise affirm the judgment.

                                      BACKGROUND

       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. The record contains no evidence of the truck’s value.

       In addition to Wehr’s conviction for receiving a stolen vehicle, the jury convicted

him of possession of a controlled substance, a misdemeanor. (Health & Saf. Code,

§ 11377.) After a court trial, the court found true a prior strike allegation and five prior

prison term allegations.




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       At the beginning of his sentencing hearing, Wehr moved to reduce his felony

conviction for receiving a stolen vehicle to a misdemeanor. He argued that, after

Proposition 47, receiving stolen property worth $950 or less is a misdemeanor.

Moreover, he argued, 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 conviction. The court denied the motion.

       For possession of a controlled substance, the court sentenced Wehr to 306 days in

jail and credited him with 306 days of 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.

                                       DISCUSSION

I. Wehr’s Ineligibility for Proposition 47 Relief

       Our Supreme Court held in Orozco that convictions for receiving a stolen vehicle

under section 496d are categorically ineligible for Proposition 47 relief. (Orozco, supra,

9 Cal.5th at pp. 118-123.) Wehr is therefore ineligible for Proposition 47 relief, and the

trial court properly denied his motion. Wehr nevertheless contends that his ineligibility

amounts to an equal protection violation under the federal and state Constitutions. We

disagree.

       “Both the state and federal Constitutions extend to persons the equal protection of

law.” (People v. Chatman (2018) 4 Cal.5th 277, 287.) An equal protection challenge

requires a showing that the government has adopted a classification affecting two or more

similarly situated groups in an unequal manner. (People v. Wilkinson (2004) 33 Cal.4th


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821, 836 (Wilkinson).) The level of scrutiny that we apply depends on the type of

classification. (Ibid.) Statutes that involve suspect classes like race or national origin, or

those that impinge on “‘fundamental rights,’” are subject to strict scrutiny. (Ibid.)

Statutes involving neither a suspect class nor a fundamental right are subject to the

minimum equal protection standard—rational basis review. (People v. Turnage (2012)

55 Cal.4th 62, 74 (Turnage).)

       Wehr argues that strict scrutiny applies here because his fundamental interest in

liberty is at issue. At the same time, he contends that the disparate treatment of his

offense does not survive even rational basis review, so we need not decide whether to

apply strict scrutiny. We conclude that rational basis review applies to Wehr’s claim.

(Wilkinson, supra, 33 Cal.4th at p. 838.) Defendants do not have “‘a fundamental interest

in a specific term of imprisonment or in the designation a particular crime receives’”

(ibid.), and section 496d does not involve a suspect class.

       Under rational basis review, “equal protection of the law is denied only where

there is no ‘rational relationship between the disparity of treatment and some legitimate

governmental purpose.’” (Turnage, supra, 55 Cal.4th at p. 74.) “‘This standard of

rationality does not depend upon whether lawmakers ever actually articulated the purpose

they sought to achieve. Nor must the underlying rationale be empirically substantiated.

[Citation.] While the realities of the subject matter cannot be completely ignored

[citation], a court may engage in “‘rational speculation’” as to the justifications for the

legislative choice [citation]. . . . If a plausible basis exists for the disparity, courts may




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not second-guess its ‘“wisdom, fairness, or logic.”’” (Johnson v. Department of Justice

(2015) 60 Cal.4th 871, 881.)

       Wehr argues that he is similarly situated to those convicted of receiving stolen

property worth $950 or less (§ 496) and those convicted of stealing a vehicle worth $950

or less (§ 490.2), and that there is no rational basis to distinguish his offense from either

of those offenses. Assuming that he is similarly situated to those groups, the equal

protection challenge lacks merit. First, we reject the challenge for reasons discussed in

Orozco. While Orozco did not involve an equal protection claim, the court addressed a

similar claim—that punishing receipt of stolen vehicles more severely than vehicle theft

or receipt of other stolen property resulted in absurd consequences. (Orozco, supra, 9

Cal.5th at p. 122.) The court rejected the absurdity challenge and held that there were

plausible reasons for the differential treatment. (Ibid.) “For example, the electorate

could have concluded that stolen vehicles, unlike other items of stolen property, are often

dismantled and sold for parts on the secondary market, which can raise their worth above

retail value.” (Ibid.) This is also a plausible reason for treating the offenses differently

under rational basis review.

       Second, we rejected the same equal protection challenge in People v. Varner for

reasons that remain sound. “‘The electorate was not obligated to extend relief under

[Proposition 47] to all similar conduct. It could instead move in an incremental way,

gauging the effects of this sea change in penal law.’” (People v. Varner (2016) 3

Cal.App.5th 360, 369.) In addition, the existence of identical penal statutes prescribing

different punishments does not violate equal protection principles, nor does the


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prosecutor’s exercise of discretion in charging under one statute or the other. (Wilkinson,

supra, 33 Cal.4th at p. 838; People v. Varner, at p. 368.) “[S]o long as there is no

showing that a defendant ‘has been singled out deliberately for prosecution on the basis

of some invidious criterion,’ that is, ‘“one that is arbitrary and thus unjustified because it

bears no rational relationship to legitimate law enforcement interests[,]”’ the defendant

cannot make out an equal protection violation.” (Wilkinson, at pp. 838-839.) Wehr has

not made such a showing here.

       In sum, Proposition 47 does not apply to Wehr’s conviction for receiving a stolen

vehicle. This result does not violate Wehr’s right to equal protection of the law.

II. Sentence Enhancements for Prior Prison Terms

       After our Supreme Court transferred this case back to us, we permitted the parties

to file supplemental briefs addressing any matters that arose after we filed the original

opinion in October 2019. Wehr has not filed a supplemental brief, but the People’s

supplemental brief argues that recent amendments to section 667.5, subdivision (b),

require Wehr’s five prior prison term enhancements to be stricken. We agree.

       The Legislature amended section 667.5, subdivision (b), effective January 1, 2020.

(People v. Chubbuck (2019) 43 Cal.App.5th 1, 13.) The amended statute “precludes the

imposition of one-year sentence enhancements for a prior prison term unless the prior

offense was sexually violent in nature.” (Ibid.) Moreover, the amended statute applies

retroactively to cases in which the judgment is not final on the effective date. (People v.

Cruz (2020) 46 Cal.App.5th 715, 739.)




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       Wehr did not serve any of his five prior prison terms for a sexually violent offense,

so the court may not enhance his sentence under section 667.5, subdivision (b). The

appropriate remedy is to vacate Wehr’s entire sentence and remand for a new sentencing

hearing. (People v. Cruz, supra, 46 Cal.App.5th at p. 739; People v. Keene (2019) 43

Cal.App.5th 861, 865.) Wehr did not receive the maximum possible sentence; the trial

court sentenced Wehr to the middle term under section 496d. The court should have the

opportunity to exercise its sentencing discretion anew, “‘in light of the changed

circumstances.’” (People v. Buycks (2018) 5 Cal.5th 857, 893.)

                                      DISPOSITION

       Wehr’s sentence is vacated. On remand, the trial court shall resentence Wehr

without imposing enhancements under section 667.5, subdivision (b). The court shall

forward an amended abstract of judgment reflecting the resentencing to the Department

of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                               MENETREZ
                                                                                          J.


We concur:

SLOUGH
                Acting P. J.
RAPHAEL
                          J.




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