Filed 9/26/16 P. v.Lee 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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,                                         G051336

         v.                                                            (Super. Ct. No. 12NF2460)

ANDREW SUNGEUN LEE,                                                    OPINION

     Defendant and Appellant.



                   Appeal from a postjudgment order of the Superior Court of Orange County,
Jonathan S. Fish, Judge. Affirmed.
                   Jared G. Coleman, 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, Barry Carlton, Sharon
Rhodes and Adrianne S. Denault, Deputy Attorneys General, for Plaintiff and
Respondent.
                                          *                  *                  *
                                      INTRODUCTION
                Defendant Andrew Sungeun Lee appeals from an order denying his petition
under Penal Code section 1170.18 for, inter alia, the reduction of his felony convictions,
for unlawfully taking a vehicle in violation of Vehicle Code section 10851,
subdivision (a) and receiving a stolen motor vehicle in violation of Penal Code
section 496d, subdivision (a), to misdemeanors. (All further statutory references are to
the Penal Code unless otherwise specified.) Lee argues his convictions fall within the
category of felony offenses that qualify for reduction to misdemeanors by the passage of
the Safe Neighborhoods and Schools Act (Proposition 47). He also argues the denial of
his petition under the new statutory scheme violates his right to equal protection of the
law under the Fourteenth Amendment to the United States Constitution and the California
Constitution.
                We affirm. Neither Vehicle Code section 10851 nor section 496d is
included in the list of statutes contained in section 1170.18, defining felonies that qualify
for redesignation as misdemeanors. Even if we were to assume both offenses constitute
theft-related offenses within the meaning of section 490.2, and thereby potentially qualify
for redesignation to misdemeanors under Proposition 47, the petition was properly denied
because Lee failed to prove that the stolen car he had received and unlawfully had taken
had a value of no more than $950, which is a requirement of misdemeanor petty theft
under section 490.2. Lee’s equal protection argument fails due to the same failure of
proof.
                                       BACKGROUND
                In 2012, Lee was charged in a felony complaint with one count each of
unlawful taking of a vehicle in violation of Vehicle Code section 10851, subdivision (a)
and receiving stolen property (a motor vehicle) in violation of section 496d, subdivision
(a). He pleaded guilty to both counts, stating as the factual basis of his plea: “In Orange
County, California, on 7-29-12 I unlawfully took the vehicle of another w/intent to

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temporarily or permanently deprive them of possession and/or was in receipt of stolen
property that I knew or should have known to be stolen.” The trial court suspended
imposition of sentence and placed Lee on three years’ formal probation with terms and
conditions including that he serve 180 days in jail.
              In November 2014, Lee filed a petition under section 1170.18,
subdivision (a), in which he sought to have his felony convictions for both counts
recalled and reduced to misdemeanors. The People filed a response opposing the petition
on the ground “not affected by Prop 47, property value greater than $950.”
              In December 2014, Lee filed a second petition for relief under
section 1170.18, subdivision (a). The trial court denied Lee’s petition. Lee appealed.
                                        DISCUSSION
                                             I.
              Proposition 47 and Standard for Interpreting Voter Initiatives
              In 2014, the voters enacted Proposition 47, which makes certain drug- and
theft-related offenses misdemeanors, unless the offenses were committed by certain
ineligible defendants. (People v. Morales (2016) 63 Cal.4th 399, 404.) Those offenses
previously had been designated either as felonies or as crimes that can be punished as
either felonies or misdemeanors. (Ibid.) Proposition 47 added, among other things,
sections 490.2 and 1170.18 to the Penal Code. (People v. Rivera (2015) 233 Cal.App.4th
1085, 1091-1092.) Section 490.2 provides that “obtaining any property by theft”
constitutes a misdemeanor where the value of the property taken does not exceed $950.
(See People v. Acosta (2015) 242 Cal.App.4th 521, 525.)
                                             II.

            Lee Failed to Show Proposition 47 Applies to His Convictions for
              Unlawful Taking of a Vehicle and Receiving a Stolen Vehicle.
              Lee was convicted of unlawful taking of a vehicle in violation of Vehicle
Code section 10851, subdivision (a), and receiving stolen property (a motor vehicle) in


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violation of section 496d, subdivision (a). Neither Vehicle Code section 10851 nor
section 496d is included in section 1170.18, subdivision (a)’s list of statutes defining
felony offenses that qualify for redesignation as misdemeanors. Indeed, “[t]he
ameliorative provisions of Proposition 47 apply to ‘Sections 11350, 11357, or 11377 of
the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal
Code, as those sections have been amended or added by this act.’ (§ 1170.18.)” (People
v. Acosta, supra, 242 Cal.App.4th at p. 526.)
              Notwithstanding the omission of the crimes of unlawful taking of a vehicle
and receiving stolen property from the enumerated offenses in section 1170.18,
subdivision (a), Lee argues that both offenses qualify as theft-related offenses within the
meaning of section 490.2 and, therefore, under that statute, his convictions are eligible for
redesignation to misdemeanors. Section 490.2, subdivision (a) provides in relevant part:
“Notwithstanding Section 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.” Section 487 defines grand theft, which
includes the theft of an automobile. (§ 487, subd. (d)(1).)
              The California Supreme Court is currently considering this issue with
respect to Vehicle Code section 10851 in People v. Page (2015) 241 Cal.App.4th 714,
review granted January 27, 2016, S230793, People v. Solis (2016) 245 Cal.App.4th 1099,
review granted June 8, 2016, S234150, and People v. Haywood (2015) 243 Cal.App.4th
515, review granted March 9, 2016, S232250. The Supreme Court has also granted
review in two cases where the felony conviction was for receiving a stolen vehicle
(§ 496d). (See People v. Nichols (2016) 244 Cal.App.4th 681, review granted Apr. 20,
2016, S233055; People v. Peacock (2015) 242 Cal.App.4th 708, review granted Feb. 17,
2016, S230948.)



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               We do not need to decide whether section 490.2 might be applied to reduce
some felony convictions under Vehicle Code section 10851 or section 496d to
misdemeanors because even were we to assume such an application, section 490.2
requires that the property at issue must have a value of $950 or less. Lee’s factual basis
for his guilty plea only showed he took “the vehicle of another w/intent to temporarily or
permanently deprive them of possession” and was in receipt of property he knew or
should have known was stolen. Nothing in our record shows the value of the stolen
vehicle.
               Lee argues the record shows the vehicle in question had a value of $950 or
less because the trial court’s minute order from the sentencing hearing included a
restitution order “in the amount of: $456.65 plus interest at 10% per year from loss date
7/25/12 for victim Magnin, Lynn signed and filed.” The record does not show that the
amount reflected in the restitution order equaled the value of the vehicle. Indeed, the
record does not show what expense the restitution order represents. Lee had the burden
of showing the facts establishing his eligibility for relief under Proposition 47, including
that the value of the stolen vehicle did not exceed $950. (People v. Sherow (2015) 239
Cal.App.4th 875, 877 [section 1170.18 places the burden on the petitioner to show that
the value of the item at issue did not exceed $950].) Because Lee failed to carry that
burden, the petition was properly denied.
                                             III.
           Lee’s Constitutional Right to Equal Protection Has Not Been Violated.
               Lee argues that the equal protection clause of the Fourteenth Amendment to
the United States Constitution and the equal protection clause of the California
Constitution require application of the provisions of sections 490.2 and 1170.18 to his
felony convictions for violating Vehicle Code section 10851, subdivision (a) and
section 496d, subdivision (a). Lee’s argument is based on section 490.2,
subdivision (a)’s provision that even a conviction for grand theft auto in violation of

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section 487, subdivision (d)(1) constitutes a misdemeanor offense if the value of the
vehicle does not exceed $950.
              In his supplemental opening brief, Lee argues: “If the plain language of
section 490.2 does not apply to either section 496d or Vehicle Code section 10851
(‘Section 10851’), then similarly situated defendants will be treated differently (assuming
the value of the theft does not exceed $950 and the defendant has not suffered a
disqualifying prior conviction). For instance, if a defendant who took a vehicle worth
less than $950 was prosecuted under section 496d or Section 10851 he would suffer a
felony conviction. But if the same defendant was prosecuted for theft of a vehicle under
section 487, subdivision (d)(1) he would only suffer a misdemeanor conviction under
Proposition 47. [¶] These hypothetical defendants are similarly situated because
section 496d and Section 10851 apply to the same conduct as section 487,
subdivision (d)(1).”
              “‘“The equal protection guarantees of the Fourteenth Amendment and the
California Constitution are substantially equivalent and analyzed in a similar fashion.
[Citations.]” [Citation.] We first ask whether the two classes are similarly situated with
respect to the purpose of the law in question, but are treated differently. [Citation.] If
groups are similarly situated but treated differently, the state must then provide a rational
justification for the disparity. [Citation.]’” (People v. Noyan (2014) 232 Cal.App.4th
657, 666.) “‘“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
similarly situated groups in an unequal manner.” [Citations.]’ [Citation.] This concept
‘“‘compels recognition of the proposition that persons similarly situated with respect to
the legitimate purpose of the law receive like treatment.’” [Citation.]’” (Ibid.)
              An individual who has stolen a vehicle in violation of section 487 is
eligible for redesignation of his or her felony conviction to a misdemeanor under
sections 490.2 and 1170.18 if the stolen vehicle is worth no more than $950. Lee’s equal

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protection argument therefore depends on his establishing that he is similarly situated to
individuals convicted of stealing a vehicle worth $950 or less. As discussed ante, Lee
has not shown he is similarly situated to such a class because he failed to show the value
of the vehicle that he “was in receipt of” and “took.” There is nothing in Lee’s plea or
any finding of fact that establishes the vehicle had a value of $950 or less. Because the
record does not show the value of the stolen vehicle, Lee has failed to show he is
similarly situated to persons convicted of grand theft auto involving vehicles with a value
of no more than $950, who, he contends, received unequal treatment under
Proposition 47. We therefore reject his equal protection challenge.


                                       DISPOSITION
              The postjudgment order is affirmed.




                                                 FYBEL, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



MOORE, J.




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