Filed 8/25/16 P. v. Medina 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                      E064325

v.                                                                      (Super.Ct.No. FWV1403928)

ALEJANDRO MEDINA,                                                       OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,

Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

         Erica Gambale, 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, and Sabrina Y.

Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.



                                                             1
       In this Proposition 47 case, defendant Alejandro Medina appeals an order denying

his petition for resentencing as to his conviction for receiving a stolen vehicle (Pen. Code,

§ 496d, subd. (a)).1 Defendant contends Proposition 47, the Safe Neighborhoods and

Schools Act (§ 1170.18), implicitly includes the offense of receiving a stolen vehicle

under section 496, subdivision (a), which makes the receipt of stolen property valued at

$950 or less punishable as a misdemeanor under Proposition 47. Defendant alternatively

contends that denial of his petition for resentencing violated his equal protection rights.

       We conclude a conviction for violating section 496d, subdivision (a), does not

qualify for resentencing under Proposition 47. We also reject defendant’s equal

protection challenge. The trial court therefore did not err in denying defendant’s petition

for resentencing, and the judgment is affirmed.

                                              I

                      FACTS AND PROCEDURAL BACKGROUND

       In October 2014, defendant pled no contest to buying or receiving a stolen motor

vehicle (§ 496d). Defendant also admitted a gang enhancement (§ 186.22, subd. (b)) and

a prior conviction for receiving a stolen vehicle (§ 666.5, subd. (a)). During the plea

hearing, counsel stipulated that the police reports in the court file provided a factual basis

for the plea. The trial court sentenced defendant to three years in prison.

       In July 2015, defendant filed a petition for resentencing under Proposition 47. The

trial court held a hearing on the petition and denied the petition on the ground defendant


       1   Unless otherwise noted, all statutory references are to the Penal Code.

                                              2
was “statutorily ineligible due to the nature [of] the charges. . . . And again it is this

Court’s view that the charge of 496(d), receiving stolen property, a stolen vehicle, the

defendant is statutorily ineligible due to that charge regardless of the value of the

vehicle.”

                                               II

                                     PROPOSITION 47

       On November 4, 2014, voters enacted Proposition 47, which went into effect the

next day. (Cal. Const., art. II, § 10, subd. (a).) “Proposition 47 makes certain drug- and

theft-related offenses misdemeanors, unless the offenses were committed by certain

ineligible defendants. These offenses had previously been designated as either felonies

or wobblers (crimes that can be punished as either felonies or misdemeanors).” (People

v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) “Proposition 47 also created a new

resentencing provision: section 1170.18. Under section 1170.18, a person ‘currently

serving’ a felony sentence for an offense that is now a misdemeanor under Proposition

47, may petition for a recall of that sentence and request resentencing in accordance with

the statutes that were added or amended by Proposition 47.” (Id. at p. 1092.)

       Proposition 47 amended section 496 (buying or receiving stolen property) to

provide that if the value of the property at issue is $950 or less, the offense is a

misdemeanor. (§ 496, subd. (a).) The former version of section 496 gave the prosecution

discretion to charge the offense as a misdemeanor if the value of the property did not

exceed $950 and the district attorney or grand jury determined that charging the crime as

a misdemeanor would be in the interests of justice. (Former § 496, added by Stats. 2011,

                                               3
ch. 15, § 372, eff. April 4, 2011, operative Oct. 1, 2011.) In effect, Proposition 47

changed the section 496 offense of receiving stolen property not exceeding $950, from a

wobbler to a misdemeanor. Proposition 47, however, did not amend section 496d, the

section under which defendant was convicted for receiving a stolen vehicle.

                                             III

            ELIGIBILITY FOR RESENTENCING UNDER SECTION 496D

       Defendant contends his conviction for violating section 496d, subdivision (a),

qualifies for resentencing under Proposition 47. The trial court ruled a section 496d

offense is ineligible for resentencing. We agree.

       Section 496d, subdivision (a), states in relevant part that “Every person who buys

or receives any motor vehicle . . . that has been stolen or that has been obtained in any

manner constituting theft or extortion, knowing the property to be stolen or obtained, or

who conceals, sells, withholds, or aids in concealing, selling, or withholding any motor

vehicle . . . from the owner, knowing the property to be so stolen or obtained, shall be

punished by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months or

two or three years or a fine of not more than ten thousand dollars ($10,000), or both, or

by imprisonment in a county jail not to exceed one year or a fine of not more than one

thousand dollars ($1,000), or both.” The crime of receiving a stolen vehicle in violation

of section 496d, subdivision (a), remains a wobbler, a crime punishable as either a felony

or a misdemeanor. (§§ 17, subds. (a) & (b), 496d, subd. (a).)

       Proposition 47’s resentencing provision, section 1170.18, subdivision (a),

provides: “A person currently serving a sentence for a conviction . . . of a felony . . . who

                                              4
would have been guilty of a misdemeanor under the act that added this section (‘this act’)

had this act been in effect at the time of the offense may petition for a recall of sentence

before the trial court that entered the judgment of conviction in his or her case to request

resentencing in accordance with 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.”

       In order to be eligible for resentencing, defendant must be a person “who would

have been guilty of a misdemeanor” if Proposition 47 had been in effect at the time of his

offense. Because a section 496d crime remains a wobbler, defendant would not

necessarily have been guilty of a misdemeanor had Proposition 47 been in effect when

defendant committed the section 496d crime of receiving a stolen vehicle. After the

voters approved Proposition 47, the prosecution retained the ability to charge a section

496d violation as either a misdemeanor or a felony. Therefore defendant is ineligible for

resentencing under Proposition 47. He is not a person “who would have been guilty of a

misdemeanor” under Proposition 47.

       Defendant contends that section 496, as amended by Proposition 47, provides

broad language impliedly qualifying a section 496d crime for resentencing as a

misdemeanor if the stolen vehicle is worth $950 or less. Section 496 is one of the

enumerated statutes qualifying for resentencing under section 1170.18, subdivision (a).

Defendant reasons that because section 496, subdivision (a), makes receipt of any stolen

property worth less than $950 a misdemeanor, and a vehicle is a form of property, his



                                              5
conviction under section 496d for receiving a stolen vehicle must be reduced to a

misdemeanor. We are not persuaded.

       We recognize the language, “any property,” included in section 496, subdivision

(a) is broad enough to encompass a stolen vehicle. However, Proposition 47 only applies

to those crimes in which the defendant “would have” been guilty of a misdemeanor, as

opposed to crimes in which a defendant “could have” been guilty of a misdemeanor if the

prosecution in its discretion chose to charge the defendant more leniently. In the instant

case, Proposition 47 does not operate to reduce defendant’s sentence because the

prosecution would have had the discretion to prosecute defendant’s section 496d crime as

a felony even after the passage of Proposition 47, and most likely would have done so,

because the same sentencing considerations applied to defendant’s offense before as well

as after the passage of Proposition 47.

       Language in other portions of Proposition 47 also supports this conclusion.

Section 490.2, which was added by Proposition 47, provides a definition of petty theft

which begins with the phrase, “Notwithstanding Section 487 or any other provision of

law defining grand theft . . . .” Similarly, section 459.5, which was also added by

Proposition 47, provides a definition of shoplifting which begins with the phrase:

“Notwithstanding Section 459 [burglary] . . . .” This “notwithstanding” language is

notably absent from section 496. Because that provision contains no reference to section

496d and Proposition 47 did not amend section 496d to require sentencing as a

misdemeanor, it is reasonable to assume the drafters of Proposition 47 intended section

496d to remain intact as a wobbler, with the prosecution retaining discretion to charge a

                                             6
section 496d offense as a felony. The absence of any reference in Proposition 47 to

section 496d, including in the list of crimes eligible for resentencing, shows that section

496d was intended to remain beyond Proposition 47’s reach. (See Barnhart v. Peabody

Coal Co. (2003) 537 U.S. 149, 168.) We conclude defendant’s section 496d conviction

therefore does not qualify for resentencing as a matter of law.

                                              IV

                                  EQUAL PROTECTION

       Defendant alternatively argues that denying his petition for resentencing on his

section 496d conviction for receiving a stolen vehicle violates his constitutional right to

equal protection. Defendant argues that a person convicted of receiving a stolen vehicle

with a value of $950 or less, in violation of section 496d, is similarly situated to a person

convicted of receiving stolen property or theft of property with a value of $950 or less, in

violation of sections 496, subdivision (a), 487, subdivision (d)(1), or 490.2. Under

Proposition 47, section 496 and 490.2 convictions are listed as eligible for resentencing,

whereas a section 496d conviction is not a listed eligible offense.

       The federal equal protection clause (U.S. Const., 14th Amend.) and the California

equal protection clause (Cal. Const., art. I, § 7, subd. (a)) provide that all persons

similarly situated should be treated alike. The California Supreme Court in People v.

Wilkinson (2004) 33 Cal.4th 821, 838 (Wilkinson) instructs that “[a] defendant . . . ‘does

not have a fundamental interest in a specific term of imprisonment or in the designation a

particular crime receives.’ [Citations.]” Therefore, the rational basis test is applicable

here to an equal protection challenge involving “‘an alleged sentencing disparity.’”

                                               7
(Ibid.) Our Supreme Court also has applied the rational basis test to an alleged statutory

disparity: “Where, as here, a disputed statutory disparity implicates no suspect class or

fundamental right, ‘equal protection of the law is denied only where there is no “rational

relationship between the disparity of treatment and some legitimate governmental

purpose.”’ [Citation.]” (Johnson v. Department of Justice (2015) 60 Cal.4th 871, 881

(Johnson).)

       In Johnson, the court explained that application of the rational basis standard

“‘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]. It is immaterial for rational basis review “whether or not”

any such speculation has “a foundation in the record.”’ [Citation.]” (Johnson, supra, 60

Cal.4th at p. 881.) Therefore, “[t]o mount a successful rational basis challenge, a party

must ‘“negative every conceivable basis”’ that might support the disputed statutory

disparity. [Citations.] If a plausible basis exists for the disparity, courts may not second-

guess its ‘“wisdom, fairness, or logic.”’ [Citations.]” (Ibid.)

       Defendant argues that a defendant would qualify for resentencing for the same

criminal act of receiving a stolen vehicle worth $950 or less, if convicted under section

496. But section 496, is a more general statute, which is not limited just to the receipt of

stolen vehicles, as is section 496d, subdivision (a). Under the well-known cannon of

statutory construction, “‘A specific provision relating to a particular subject will govern a

                                              8
general provision . . . .’” (People v. Tanner (1979) 24 Cal.3d 514, 538.) Here, the

district attorney chose to prosecute defendant under the narrower statute, section 496d,

which specifically applies to defendant’s crime of receiving a stolen vehicle. It is

reasonable to assume the voters intended that the crime of receiving a stolen vehicle

would normally be charged and prosecuted under the more narrowly tailored statute,

section 496d, rather than section 496, and that resentencing would not apply under

Proposition 47 to a conviction for a section 496d crime, since section 496d is not

mentioned or amended in Proposition 47.

       There are several plausible reasons for the resentencing disparity between a

section 496d conviction and a section 496 conviction. One reason is that the offense of

buying or receiving a stolen vehicle, as opposed to other property, may have greater

adverse consequences for the victims than other theft-related offenses. The owners of

vehicles are often dependent on their vehicles for transportation to work and school, and

for obtaining the necessities of life, which is not as likely to be the case with theft of

other forms of property.

       Another reason is that, unlike other types of stolen property, stolen vehicles are

often dismantled and sold for parts in “chop shops” which can raise their worth above

retail value. Section 496d was added “to the Penal Code to encompass only motor

vehicles related to the receiving of stolen property.” (Sen. Rules Com., Off. of Sen. Floor

Analyses, 3d reading analysis of Assem. Bill No. 2390 (1997-1998 Reg. Sess.) as

amended June 23, 1998.) The statute was intended to provide “‘additional tools to law

enforcement for utilization in combating vehicle theft and prosecuting vehicle thieves.

                                               9
Incarcerating vehicle thieves provides safer streets and saves Californians millions of

dollars. These proposals target persons involved in the business of vehicle theft and

would identify persons having prior felony convictions for the receiving of stolen

vehicles for enhanced sentences.’” (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d

reading analysis of Assem. Bill No. 2390 (1997-1998 Reg. Sess.) as amended June 23,

1998.)

         A third plausible reason for the disparity arising from excluding a section 496d

conviction from qualifying for resentencing under Proposition 47 is that the voters did

not intend to eliminate prosecutorial discretion to charge a section 496d offense as either

a felony or misdemeanor. Our Supreme Court has ruled that “numerous factors properly

may enter into a prosecutor’s decision to charge under one statute and not another, such

as a defendant’s background and the severity of the crime, and so 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. [Citation.]” (Wilkinson, supra, 33 Cal.4th

at pp. 838-839.) These plausible reasons provide a rational basis for any resentencing

disparity that might exist between a section 496d conviction for buying or receiving a

vehicle and a section 496 conviction.

         In addition, someone who knowingly receives or buys a stolen vehicle is culpable

of intentionally perpetuating and exploiting a vehicle theft by failing to report the theft to

law enforcement by failing to return the vehicle to the owner. Such conduct provides car

                                              10
thieves with a financial incentive to steal and dispose of vehicles. Imposing harsher

penalties on those who knowingly buy or receive stolen vehicles may be intended to deter

vehicle theft. This constitutes another plausible, rational reason for any disparity in

resentencing as to section 496d crimes.

       We also reject defendant’s equal protection challenge asserting that those

convicted of a vehicle theft crime (§§ 487, subd. (a), 490.2) are similarly situated to

defendants convicted of the section 496d crime of receiving a stolen vehicle. Those who

steal a vehicle are not similarly situated to those who buy or receive a stolen vehicle, for

purposes of equal protection. Theft and the crime of receiving or buying stolen property

are entirely different crimes, even if the stolen property may be of the same nature.

Denying defendant’s petition for resentencing on his section 496d conviction therefore

does not violate defendant’s equal protection rights. Defendant is not similarly situated

to those resentenced on convictions for thefts and there are plausible reasons for any

disparity in resentencing on a section 496d conviction and convictions for other theft

related crimes.

       Because we conclude defendant’s conviction for violating section 496d,

subdivision (a), does not qualify for resentencing as a matter of law, defendant’s due

process challenge to not receiving an evidentiary hearing on his resentencing petition

need not be addressed as moot.




                                             11
                                      V

                                  DISPOSITION

      The judgment is affirmed.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                CODRINGTON
                                                             J.

We concur:


McKINSTER
               Acting P. J.


MILLER
                         J.




                                      12
