Filed 3/28/16 P. v. Barnes 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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,                                                         H041943
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1364563)

         v.

TIMOTHY BRIAN BARNES,

         Defendant and Appellant.


         Defendant Timothy Brian Barnes 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.
         Defendant raises two grounds in support of his argument that he is eligible for
resentencing under Proposition 47. First, he contends the offense of receiving a stolen
vehicle 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. Second, he 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 September 4, 2013, the prosecution charged defendant by felony complaint
with receiving a stolen vehicle—a 1992 Nissan Sentra—under Section 496d. The
complaint also alleged defendant had been released on bail at the time he committed the
offense, which release had been revoked due to his commission of another felony. (Pen.
Code, § 12022.1.) On October 17, 2013, defendant pleaded no contest to the offense as
charged and admitted the enhancement allegation. On December 6, 2013, the trial court
suspended imposition of sentence and granted a three-year term of formal probation with
eight months in county jail as a condition of probation. The court also ordered defendant
to pay $580 in restitution to the victim.
       On December 24, 2014, 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. The
court also rejected defendant’s claim that the denial of his petition would violate his equal
protection rights. 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.

       2
           The facts of the offense are not set forth in the record.
                                                 2
       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 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.

       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.]


       3
        This subdivision excludes certain categories of persons from misdemeanor
sentencing. Defendant’s petition states he is not such a person.
                                               3
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. Accordingly, we 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..

   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


                                               4
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
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.)
       We adopt Nichols’ holding and will apply it here. 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.




                                              5
                      _______________________________
                      Márquez, J.




WE CONCUR:




______________________________
 Premo, Acting P.J.




______________________________
 Grover, J.
