Filed 5/13/16 P. v. Cano 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                                     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,                                       E064321

v.                                                                       (Super.Ct.No. FSB1404830)

CHRISTOPHER ROBERT CANO,                                                 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.

         James M. Crawford, 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
       On November 4, 2014, the voters approved Proposition 47, The Safe

Neighborhoods and Schools Act (Proposition 47). Proposition 47 reduced certain

nonserious, nonviolent felonies to misdemeanors. Proposition 47 allows a person

convicted of a felony prior to its passage, who would have been guilty of a misdemeanor

under Proposition 47, to petition the court to reduce his or her felony to a misdemeanor

and be resentenced.

       On October 23, 2014, prior to the passage of Proposition 47, defendant entered a

guilty plea to a felony violation of receiving stolen property, specifically a motor vehicle

(Pen. Code, § 496d, subd. (a)),1 and admitted to having suffered a prior conviction of

violating Vehicle Code section 10851. Defendant filed a petition to recall his sentence

(Petition) stating that his felony conviction should be reduced to a misdemeanor. The

trial court denied the petition on the grounds that his conviction was not eligible for

resentencing under Proposition 47.

       Defendant now claims on appeal that the trial court erred by finding that a

violation of section 496d does not qualify for resentencing under Proposition 47 because

(1) Proposition 47 redefines all theft-related offenses with the value of the property under

$950 as misdemeanors; and (2) if this court finds that section 496d was not affected by

Proposition 47, the omission from Proposition 47 violated his equal protection rights.

       We affirm the denial of the Petition.




       1   All further statutory references are to the Penal Code unless otherwise indicated.


                                               2
                    FACTUAL AND PROCEDURAL HISTORY

      On October 15, 2014, a felony complaint was filed against defendant in San

Bernardino County case No. FSB1404830, charging him in count 1 with receiving stolen

property, motor vehicle, within the meaning of Penal Code section 496d, subdivision (a).

Specifically, he was charged with unlawfully buying or receiving a 1993 Honda Accord.

Defendant was charged in count 2 with the unlawful driving or taking of a vehicle (the

same Honda Accord) in violation of Vehicle Code section 10851, subdivision (a). It was

further alleged as to both counts pursuant to Penal Code section 666.5 that he had

previously been convicted of a violation of Vehicle Code section 10851.2

      On October 23, 2014, defendant signed a plea agreement in which he agreed to

enter a plea of guilty to one count of “receiving stolen property—motor vehicle” within

the meaning of section 496d, subdivision (a). He also agreed to admit the prior

conviction within the meaning of section 666.5. Defendant thereafter admitted to

committing these offenses in open court on October 23, 2014. Count 2 was dismissed.

Defendant was sentenced to the midterm of three years.

      On July 6, 2015, defendant filed his Petition. It consisted of one page. The sole

information on his conviction that was provided in the Petition was as follows:

“Defendant in the above-entitled case requests that, pursuant to Penal Code section




      2 According to the police report provided to this court, on October 12, 2014,
defendant was found in possession of a 1993 Honda Accord, which had been reported
stolen.


                                            3
1170.18, the following felony violation(s) PC496d(a) be designated as misdemeanor(s)”

He stated that he was currently in custody.

       On July 17, 2015, the trial court heard the petition. At the hearing, defendant’s

counsel stated, “Your Honor, just on that, I just wanted to briefly make an objection and

note that in the Kelly Blue Book the value of the 1993 Honda with 300,000 miles is

$768.” The trial court ruled, “But I think that due to the nature of the charges, 496(d), he

would be statutorily ineligible.”

                                      DISCUSSION

       Defendant contends that the trial court erred in denying his petition because the

voters intended to include section 496d under Proposition 47. Defendant also contends

that if this court concludes section 496d was not intended to be included in Proposition

47, his equal protection rights have been violated.3

       A.     PROPOSITION 47

       “The voters approved Proposition 47 at the November 4, 2014 general election,

and it became effective the next day.” (People v. Diaz. (2015) 238 Cal.App.4th 1323,

1328.) “[P]roposition 47 ‘was intended to reduce penalties “for certain nonserious and

nonviolent property and drug offenses from wobblers or felonies to misdemeanors.”’”

(T.W. v. Superior Court (2015) 236 Cal.App.4th 646, 652.)



       3 These issues are currently under review in the California Supreme Court in
People v. Romanowski (2015) 242 Cal.App.4th 151, review granted January 20, 2016,
S231405 and People v. Garness (2015) 241 Cal.App.4th 1370, review granted January
27, 2016, S231031.


                                              4
       Proposition 47 added Penal Code section 1170.18. Subdivision (a) of Penal Code

section 1170.18, provides in pertinent part, “A person currently serving a sentence for a

conviction, whether by trial or plea, of a felony or felonies who 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

Sections 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have

been amended or added by this act.” Under Penal Code section 1170.18, subdivision (b)

the trial court first determines whether the petition has presented a prima facie case for

relief under Penal Code section 1170.18, subdivision (a). If the petitioner satisfies the

criteria in subdivision (a), then he will be resentenced to a misdemeanor, unless the court,

within its discretion, determines the petitioner would pose an unreasonable risk to public

safety. (Pen. Code, § 1170.18, subd. (b).)

       Proposition 47 amended section 496, buying or receiving stolen property, to

provide that if the defendant receives “any property” that is $950 or less, the offense shall

be a misdemeanor except for some ineligible individuals. (§ 496, subd. (a).) The

previous 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 so charging would be in the interests of justice. (Former

§ 496 [eff. Oct. 1, 2011–Nov. 4, 2014].) Accordingly, Proposition 47 converted the

offense of receiving stolen property in section 496 from a wobbler to a misdemeanor.


                                              5
       Proposition 47 did not amend section 496d, the section under which defendant was

convicted. Section 496d provides “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 . . .” shall be convicted of either a misdemeanor or

felony.

       B.     ELIGIBILITY

       As stated, section 496d is not listed in Proposition 47.4 In order to be eligible for

resentencing, defendant had the burden of showing that he “would have been guilty of a

misdemeanor” if Proposition 47 had been in effect at the time of his offense. (See People

v. Sherow (2015) 239 Cal.App.4th 875, 879-880 [defendant has the burden of

establishing his or her eligibility for resentencing under Proposition 47].) “When we

interpret an initiative, we apply the same principles governing statutory construction. We

first consider the initiative’s language, giving the words their ordinary meaning and

construing this language in the context of the statute and initiative as a whole. If the

language is not ambiguous, we presume the voters intended the meaning apparent from

that language, and we may not add to the statute or rewrite it to conform to some assumed


       4  The trial court did not appear to consider that defendant had pleaded guilty to
the enhancement under section 666.5, which required defendant to be imprisoned for two,
three or four years. Since the trial court did not consider the section 666.5 enhancement,
and only determined that defendant’s conviction pursuant to section 496d made him
ineligible under Proposition 47, we will not address whether section 666.5 made him
ineligible under Proposition 47. However, we will consider it in addressing his equal
protection claim, post.


                                              6
intent not apparent from that language. If the language is ambiguous, courts may

consider ballot summaries and arguments in determining the voters’ intent and

understanding of a ballot measure.” (People v. Superior Court (Pearson) (2010) 48

Cal.4th 564, 571.)

       Defendant stated in his petition only that he had been convicted of “PC 496d(a).”

The trial court determined that defendant was not eligible for resentencing. The trial

court did not err because section 496d is not included in section 1170.18. Moreover,

there is no indication that the drafters of Proposition 47 intended to include section 496d.

       Defendant contends that “[i]t would be absurd for a violation for receiving stolen

property, valued at less than $950, in violation of section 496, to be eligible for reduction

to a misdemeanor when the essentially same offense of receiving stolen property—a

vehicle, worth less than $950, is not eligible for reduction.” However, as stated, before

Proposition 47’s passage, section 496 provided that a prosecutor had the discretion to

charge a defendant who had received stolen property as a misdemeanor if the property

stolen was valued less than $950. (Former § 496 [effective Oct. 1, 2011–Nov. 4, 2014].)

The only change to section 496 relevant here is that now a defendant must be charged

with a misdemeanor if the value of the property is under $950. Section 496d has

remained the same since October 1, 2011. (Stats. 2011, c. 15 (A.B. 109), § 374.)

Proposition 47 did not alter the prosecution’s discretion to charge receiving a stolen

vehicle under the more general statute (§ 496) or the more specific statute (§ 496d).

Section 1170.18 applies only to those people who “would have” been guilty of a

misdemeanor prior to the passage of Proposition 47. Here, the prosecution would likely


                                              7
have charged defendant with the same felony violation of section 496d because exactly

the same sentencing considerations applied to defendant’s offense before and after

Proposition 47.

       Moreover, defendant’s reliance on the changes made by Proposition 47 to the

crimes of grand theft and petty theft do not support that the drafters of Proposition 47

intended to include section 496d. Section 490.2, which was added by Proposition 47,

provides a definition of petty theft that affects the definition of grand theft in section 487

and other provisions. Section 490.2 begins with the phrase: “Notwithstanding Section

487 or any other provision of law defining grand theft . . . .” (§ 490.2) Similarly, section

459.5, which was also added by Proposition 47, and which provides a definition of

shoplifting that affects the definition of burglary in section 459, begins with the phrase:

“Notwithstanding Section 459. . . .” (§ 459.5.) The drafters of Proposition 47 knew how

to indicate when they intended to affect the punishment for an offense the proposition

was not directly amending. This “notwithstanding” language is conspicuously absent

from section 496, subdivision (a). Because that provision contains no reference to

section 496d, we must assume the drafters intended section 496d to remain intact and

intended for the prosecution to retain its discretion to charge section 496d offenses as

felonies. The trial court did not err by concluding defendant was ineligible for

resentencing based on his conviction of section 496d.




                                               8
              C.      EQUAL PROTECTION

       Defendant contends that if his conviction of a felony for stealing a vehicle valued

at less than $9505 does not qualify under Proposition 47, his equal protection rights were

violated because he is similarly situated to a person who is convicted of receiving

property under section 496—a misdemeanor. Specifically, he argues, “It is irrational to

grant misdemeanor treatment to those convicted under section 496 and to deny

misdemeanor treatment to those convicted under section 496d.”

       “‘The United States and California Constitutions entitle all persons to equal

protection of the laws. [Citations.] This guarantee means “that no person or class of

persons shall be denied the same protection of the laws which is enjoyed by other persons

or other classes in like circumstances.” [Citation.] A litigant challenging a statute on

equal protection grounds bears the threshold burden of showing “that the state has

adopted a classification that affects two or more similarly situated groups in an unequal

manner.” [Citation.] Even if the challenger can show that the classification differently

affects similarly situated groups, “[i]n ordinary equal protection cases not involving

suspect classifications or the alleged infringement of a fundamental interest,” the

classification is upheld unless it bears no rational relationship to a legitimate state

purpose.’” (People v. Singh (2011) 198 Cal.App.4th 364, 369.)

       “In resolving equal protection issues, the United States Supreme Court has used

three levels of analysis. Distinctions in statutes that involve suspect classifications or

       5  We will assume for sake of this argument that defendant met his burden of
establishing that the Honda Accord was valued at less than $950.


                                               9
touch upon fundamental interests are subject to strict scrutiny, and can be sustained only

if they are necessary to achieve a compelling state interest. Classifications based on

gender are subject to an intermediate level of review. But most legislation is tested only

to determine if the challenged classification bears a rational relationship to a legitimate

state purpose.” (People v. Hofsheier (2006) 37 Cal.4th 1185, 1200, overruled on other

grounds in Johnson v. Department of Justice (2015) 60 Cal.4th 871.)

       The analysis here is subject to the rational relationship test. (See People v. Noyan

(2014) 232 Cal.App.4th 657, 667-668 [applying the rational basis test in assessing section

1170, subdivision (h), the Realignment Legislation].)

       Initially, defendant cannot show he is similarly situated to a person who steals

property other than a motor vehicle. An owner of a vehicle relies on his or her vehicle

for transportation to work, doctor’s appointments, and numerous other necessities of life.

Moreover, even if a vehicle that is stolen only is valued at less than $950, the replacement

cost can be much more. In order to address the uniqueness of receiving stolen vehicles,

the Legislature enacted section 496d. The bill’s author proposed that section 496d be

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.) Section 496d

was described as “‘provid[ing] additional tools to law enforcement for utilization in

combating vehicle theft and prosecuting vehicle thieves. 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


                                             10
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.)

       Those punished under section 496d are not situated similarly to those punished

under section 496. Moreover, the drafters of Proposition 47 could legitimately determine

that those who engage in vehicle theft should be punished more severely than those

engaged in theft of other property. Section 496d addresses the unique problems

involving vehicle theft. There are legitimate and plausible reasons for treating vehicle

crimes different from other types of property crime.

       Defendant also contends, “[i]t seems implausible that the voters, who expressly

reduced the punishment for stealing a low-value car to a misdemeanor [Pen. Code,

§§ 487, subds. (a), (d)(1), 490.2], meant to leave the crime of receiving the same stolen

car—a felony.” However, for equal protection analysis, defendant has failed to show that

he was similarly situated to a person who was convicted of vehicle theft because he

suffered a prior conviction of violating Vehicle Code section 10851 and plead guilty to a

violation of Penal Code section 666.5. Defendant failed to acknowledge in his brief that

he also entered a plea to the Penal Code section 666.5 enhancement. Penal Code section

666.5, subdivision (a) provides: “Every person who, having been previously convicted of

a felony violation of Section 10851 of the Vehicle Code [theft and unlawful driving or

taking of a vehicle], or felony grand theft involving an automobile in violation of

subdivision (d) of Section 487 [of the Penal Code] . . . , or a felony violation of [Penal

Code s]ection 496d regardless of whether or not the person actually served a prior prison


                                             11
term for those offenses, is subsequently convicted of any of these offenses shall be

punished by imprisonment pursuant to subdivision (h) of Section 1170 [of the Penal

Code] for two, three, or four years . . . .” Penal Code section 666.5 increases the base

term for recidivists, and “[t]he Legislature’s obvious purpose in enacting Penal Code

section 666.5 was to increase the punishment for repeat offenders.” (People v. Carter

(1996) 48 Cal.App.4th 1536, 1540.)

       Defendant has provided no argument in this appeal that section 666.5 was

affected by Proposition 47. In fact, he completely ignores that he entered a guilty plea to

a violation of section 666.5. He cannot show that he is similarly situated to a person

convicted only of vehicle theft and subject to a misdemeanor sentence because of his

conviction of violating section 666.5. We will not make the argument for him, that he is

similarly situated to those who have not been convicted of the enhancement under section

666.5, or who are eligible to be convicted under section 666.5. As such, he cannot show

that his equal protection rights have been violated by the exclusion of section 496d from

Proposition 47 and differing treatment of those convicted of vehicle theft.6

       Based on the foregoing, defendant has failed to show that the exclusion of section

496d from Proposition 47 violated his equal protection rights.




       6  We express no opinion as to whether a defendant convicted only of violating
section 496d could show his equal protection rights have been violated based on the fact
that the same person who steals a vehicle valued at less than $950 would only be subject
to a misdemeanor conviction.


                                            12
                                      DISPOSITION

      The trial court’s order denying defendant’s petition to recall his sentence is

affirmed.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                                        MILLER
                                                                                Acting P. J.


We concur:


CODRINGTON
                                 J.


SLOUGH
                                 J.




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