Filed 1/12/15 Rojas v. Shiomoto 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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


SERGIO ROJAS,

     Plaintiff and Appellant,                                          G050453

         v.                                                            (Super. Ct. No. CIVRS1202287)

JEAN SHIOMOTO, as Chief Deputy                                         OPINION
Director, etc.,

     Defendant and Respondent.



                   Appeal from a judgment of the Superior Court of San Bernardino County,
Joseph R. Brisco, Judge. Affirmed.
                   Law Office of Patrick Thomas Santos and Patrick T. Santos for Plaintiff
and Appellant.
                   Kamala D. Harris, Attorney General, Alicia M. B. Fowler, Assistant
Attorney General, Michael E. Whitaker and Ernesto J. Fong, Deputy Attorneys General
for Defendant and Respondent.
                                          *                  *                  *
              Appellant Sergio Rojas was arrested and convicted in Los Angeles County
for driving under the influence (Veh. Code, § 23152, subd. (a); all statutory references are
to the Vehicle Code unless otherwise stated). Due to a pilot project in Los Angeles,
Alameda, Sacramento, and Tulare Counties, a defendant convicted of driving under the
influence must have an ignition interlock device installed on his or her vehicle before
reinstatement of their driving privileges. (§ 23700, subd. (a)(3).) Rojas filed a petition
for a writ of mandate in the San Bernardino County Superior Court, contending the pilot
program violates his constitutional right to equal protection because Tulare County was
included as one of the four counties in the pilot program due to the percentage of
Hispanics in that county. The superior court denied Rojas’s petition and found the pilot
program satisfied both the rational basis test and the strict scrutiny test of equal
protection. At oral argument, Rojas’s counsel conceded the state has a compelling
interest in reducing the rate of driving under the influence offenses.
              Given there is nothing in the petition—other than his name—to indicate
Rojas is Hispanic, he impliedly asks us to assume he is Hispanic.1 We conclude Rojas
lacks standing to raise the equal protection issue because he was not arrested and
convicted in Tulare County. Thus, the inclusion of Tulare County in the pilot program
did not have any effect on Rojas whatsoever and did not deny him equal protection.




              1  Not only did the petition not allege Rojas is Hispanic, the one page
petition did not allege section 23700 suffers from a constitutional violation. After oral
argument and submission of the matter, Rojas submitted a request for judicial notice of a
record of military processing from the armed forces of the United States in an effort to
establish his ethnicity. He also requested us to vacate submission and accept
supplemental briefing on the issue of his ethnicity. We deny the untimely requests to
take judicial notice of facts not presented to the superior court and for supplemental
briefing.


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                                               I
                         FACTS AND PROCEDURAL HISTORY
              According to the petition filed below, Rojas is a resident of San Bernardino
County, and holds a valid California driver’s license. He was arrested, and on February
17, 2002, convicted of a first-time driving under the influence offense in Los Angeles
County. Upon learning of the conviction, the Department of Motor Vehicles (the DMV)
ordered Rojas to install an ignition interlock device on his vehicle pursuant to section
23700. Rojas then filed a petition for a writ of mandate in the San Bernardino County
Superior Court, seeking to have DMV’s order set aside. He contends the pilot program
discriminates against Hispanics and violates equal protection
              Rojas and the DMV each requested the court to take judicial notice of
certain legislative materials. The court granted the DMV’s request, granted a portion of
Rojas’s request, and denied the balance. The court denied Rojas’s petition, finding the
writ petition was not for administrative mandate under Code of Civil Procedure section
1094.5, that driving is not a fundamental right and, consequently, section 23700 cannot
be found to violate equal protection so long as there is a rational basis for the pilot
program, and Rojas failed to demonstrate the pilot program discriminates against
Hispanics. The court further found section 23700 satisfied the rational basis and strict
scrutiny tests of equal protection. The court denied Rojas’s claim for an exemption from
the ignition interlock device pilot program and for private attorney general attorney fees.
Rojas appealed.
                                              II
                                       DISCUSSION
              When DMV is notified an individual has been convicted of driving under
the influence in violation of section 23152 or section 23153, it immediately revokes the
driving privilege of that individual. (§ 13351, subd. (a).) A defendant who has been
convicted of a first-time violation of section 23152, and whose license has been

                                              3
suspended or revoked, may receive a restricted driver’s license from DMV upon
satisfactory proof of (1) enrollment in or completion of a licensed driving-under-the-
influence program, (2) financial responsibility, and (3) payment of all applicable fees. (§
13352.4, subd. (a).) In 2009, the Legislature enacted section 23700. That section
established a pilot program in four California Counties—Alameda, Los Angeles,
Sacramento, and Tulare—from July 1, 2010, to January 1, 2016. (Stats. 2009, ch. 217.)
It provides that notwithstanding any other law—including section 13352.4—before a
defendant convicted of violating section 23152 or section 23152 can obtain a license to
drive, the defendant must install an ignition interlock device in his or her vehicle. (§
23700, subd. (a)(1).)
              Rojas was convicted of violating section 23152 in Los Angeles County and
is subject to section 23700’s provisions. He contends section 23700 is unconstitutional
because it denies him equal protection of the law. According to Rojas, Tulare County
was included in the pilot program because it has an Hispanic majority population and a
majority of those arrested in that county for driving under the influence (76.6 percent) are
Hispanic. Consequently, he argues similarly situated defendants are treated differently
based on the county in which they are convicted of driving under the influence. More
specifically, he argues section 23700 violates equal protection because the Legislature
improperly included Tulare County in the pilot program as the result of an improper race-
based consideration.2


              2 Although Rojas argued below the imposition of the ignition interlock
device requirement in only four out of California’s 58 counties violates equal protection,
for good reason he does not make that argument here. (See McGlothlen v. Department of
Motor Vehicles (1977) 71 Cal.App.3d 1005; [four-county pilot project pertaining to the
driver’s license of one convicted of driving under the influence does not violate equal
protection]; Department of Motor Vehicles v. Superior Court (1976) 58 Cal.App.3d 936,
940-942 [same].) Moreover, the United States Supreme Court has held a statute may
constitutionally discriminate among individuals in different counties. (Salsburg v.
Maryland (1954) 346 U.S. 545, 546.)

                                              4
              On appeal, we review the constitutionality of a statute de novo. (Finberg v.
Manset (2014) 223 Cal.App.4th 529, 532.) Additionally, we independently review the
application of the statute to undisputed facts. (People v. Conley (2004) 116 Cal.App.4th
566, 573, fn. 6.)
              The United States and California Constitutions guarantee citizens the equal
protection of the law. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7.) California’s
constitutional provision has been interpreted to be “‘substantially the equivalent’” of the
Fourteenth Amendment. (Manduley v. Superior Court (2002) 27 Cal.4th 537, 571.)
“Consequently, we deem our analysis of [defendant’s] equal protection claim under the
Fourteenth Amendment to the United States Constitution also applicable to [his] equal
protection claim made pursuant to provisions in the California Constitution . . . .” (Id. at
p. 572.)
              “‘The equality guaranteed by the equal protection clauses of the federal and
state Constitutions is equality under the same conditions, and among persons similarly
situated.’ [Citation.]” (People v. Boyce (2014) 59 Cal.4th 672, 722.) Although the
different treatment of similarly situated individuals may raise an issue of equal
protection, differential treatment does not violate equal protection if an appropriate
justification is demonstrated for the differential treatment. (People v. McKee (2010) 47
Cal.4th 1172, 1184 [matter remanded to give People opportunity to justify differential
treatment].) Generally, dissimilar treatment will be upheld if it is “rationally related to a
legitimate state interest.” (City of Cleburne v. Cleburne Living Center (1985) 473 U.S.
432, 440.) This is known as the rational basis test. (People v. Wilkinson (2004) 33
Cal.4th 821, 838.) When the right infringed is deemed fundamental or the statute’s
distinctions are based on a suspect classification such as race, the legislation is subject to
strict scrutiny. (Clark v. Jeter (1988) 486 U.S. 456, 461.) To pass constitutional muster
under the strict scrutiny standard, the statute’s restrictions must be “necessary to serve a



                                              5
compelling state interest and . . . narrowly drawn to achieve that end. [Citation.]” (Perry
Educ. Assn. v. Perry Local Educators’ Assn. (1983) 460 U.S. 37, 45.)
              Driving is not a fundamental right and a statute impinging one’s driving
privilege is not subject to strict scrutiny merely because it impacts that privilege.
(Hernandez v. Department of Motor Vehicles (1981) 30 Cal.3d 70, 80.) Rojas argues
section 23700 is subject to strict scrutiny because racial discrimination was a substantial
or motivating factor in selecting one of the counties (Tulare) included in the pilot
program.
              It appears Assembly Bill No. 91, which became section 23700, was
originally designed to apply in only three counties, Alameda, Los Angeles, and
Sacramento. (Sen. Com. on Public Safety, Rep. on Assem. Bill 91 (2009-2010 Reg.
Sess.) July 7, 2009.) The report stated Hispanics were the largest ethnic group among
arrestees for driving under influence in 2009, and have been the largest group every year
since 1992. It further pointed out that in most counties the majority of arrestees are
White, but in eight rural counties, including Tulare, Hispanics comprise the majority of
arrestees. In Tulare County, for example, 76.6 percent of driving under the influence
arrestees in 2007 were Hispanic. The report asked whether it would “be appropriate to
substitute one of these more rural counties for one of the urban counties currently in the
bill?” It was suggested using one of the eight rural counties with a higher Hispanic
population percentage and a high rate of arrest for driving under the influence would
“give us a better understanding of any impact on a statewide mandate on [ignition
interlock devices] would have[.]” (Italics added.) The Legislature did not substitute
Tulare County for one of the three urban counties initially included in the proposed pilot
program. Instead, Tulare County was added to the bill as a fourth county in the pilot
program to test the effect of requiring installation of ignition interlock devices before
driving privileges are reinstated after conviction for driving under the influence. (§
23700, subd. (a).)

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              Rojas asserts Tulare County was added to the pilot program because of its
Hispanic population and therefore, racial discrimination was a “motivating” factor in the
statute’s enactment. From this premise, he argues that as DMV cannot demonstrate
Tulare County would have been added to the pilot program had the Legislature not
considered the county’s Hispanic population, the Legislature intended to treat Hispanics
differently from all others similarly situated, and the statute fails strict scrutiny analysis.
              For purposes of this appeal, “similarly situated” refers to those individuals
who have been convicted of driving under the influence and who desire to regain a
driver’s license. “A prerequisite to a meritorious claim is that individuals ‘“similarly
situated with respect to the legitimate purpose of the law receive like treatment.”’
[Citations.]” (People v. Barrett (2012) 54 Cal.4th 1081, 1107.)
              Section 23700 does not treat Hispanics differently than other drivers who
have lost their licenses due to a driving under the influence conviction. Neither does the
statute have a disproportionate effect on Hispanic individuals convicted of driving under
the influence. Although statistics indicate Hispanics generally are arrested for driving
under the influence more than other ethnicities, that is not the case in three of the four
counties involved in the pilot project. In Los Angeles, Alameda, and Sacramento
counties, Whites are arrested more often for driving under the influence than any other
ethnicity.
              As section 23700 is a pilot project designed to test whether requiring those
who have lost their driving privileges due to a conviction for driving under the influence
to install an ignition interlock device results in a diminution of repeat offenses (§ 23700,
subd. (a); Stats. 2009, ch. 217), it would seem to make sense to include urban and rural
counties in the program. In this manner, review of the effectiveness of the pilot program
could be analyzed as to its effectiveness in both urban and rural areas. However, even
were we to conclude Tulare County was ultimately added to the pilot program because
the Legislature thought it appropriate to include in the pilot program a county that has a

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majority of inhabitants of the ethnic group that suffers a disproportionately high
percentage of driving under the influence convictions, the decision to include Tulare
County did not adversely affect Rojas. Rojas was not arrested and convicted of driving
under the influence in Tulare County. He was arrested and convicted in Los Angeles
County and he appears to concede the pilot project as it was originally designed to be
conducted only in Los Angeles, Alameda, and Sacramento counties would have been
proper. In other words, Rojas does not appear to contend a pilot project limited to less
than all counties in the state violates equal protection. Hence, requiring him to install an
ignition interlock device as a condition of getting his driving privilege back after having
been convicted of driving under the influence in Los Angeles County had nothing to do
with Tulare County’s inclusion in the pilot program.
              Rojas lacks standing to raise an equal protection challenge based on Tulare
County’s inclusion in the pilot project. He was not arrested and convicted in Tulare
County and cannot raise the equal protection claim of those who were. (See People v.
Conley, supra, 116 Cal.App.4th at p. 576.) In Conley, the defendant, a former police
officer, was convicted of a misdemeanor battery (Pen. Code, §§ 242, 243, subd. (a)). He
argued he should be relieved of the 10-year firearm prohibition of Penal Code section
12021, subdivision (c)(1) that results from a conviction for battery. (People v. Conley,
supra, 116 Cal.App.4th at p. 568.) Penal Code section 12021, subdivision (c)(2)
authorized the court could relieve a peace officer of the 10-year firearm prohibition when
the officer is subject to the prohibition based on a conviction for violation of Penal Code
section 273.5, 273.6, or 646.9—offenses involving domestic abuse—when the court
makes certain favorable findings. (People v. Conley, supra, 116 Cal.App.4th at p. 572.)
The defendant in Conley contended the statute violated equal protection because while
the statute permitted a court to relieve a police officer of the 10-year firearm prohibition
when convicted of domestic abuse, a police officer convicted of the lesser included
offense of battery was not entitled to relief. (Id. at p. 576.) The appellate court found the

                                              8
defendant could not raise the equal protection issue because his conviction for battery did
not arise out of a domestic dispute. “‘“One who seeks to raise a constitutional question
must show that his rights are affected injuriously by the law which he attacks and that he
is actually aggrieved by its operation.” [Citation.]’ [Citations.] Conley may not raise
equal protection claims of other hypothetically disadvantaged peace officers as a basis to
invalidate the statute’s application to the circumstances of his case. [Citations.]” (Ibid.)
              Rojas does not argue requiring installation of an ignition interlock device as
the condition of regaining driving privileges after having been convicted of driving under
the influence is in itself improper. He argues it is improper because individuals arrested
and convicted in Tulare County would not have been subject to the test program but for
the Legislature adding Tulare County to the pilot program based on an improper factor—
race. Courts generally require a defendant to have been personally disadvantaged by the
impropriety in the challenged statute. (See People v. Burgener (2003) 29 Cal.4th 833,
860-861, fn. 3 [defendant failed to demonstrate he was harmed by unconstitutional
action]; People v. Garcia (1999) 21 Cal.4th 1, 11 [defendant, who has not been adversely
affected “lacks standing to assert the equal protection claims of hypothetical felons who
may be treated more harshly because their prior offenses were committed as juveniles”];
People v. Conley, supra, 116 Cal.App.4th at p. 576 [defendant could not raise equal
protection argument of hypothetical law enforcement defendants convicted of simple
battery as lesser included offense of domestic violence offense].) Because Rojas appears
to concede the pilot program would have been proper had it been limited to the original
three counties (Los Angeles, Alameda, and Sacramento) and he was arrested and
convicted in Los Angeles County, he may not raise an equal protection claim of an
Hispanic defendant convicted of driving under the influence in Tulare County and
required to install the ignition interlock device mandated by section 23700.




                                              9
              There are occasions when the courts will permit a defendant to raise the
equal protection argument of a third party, but this is not such a case. There are three
requirements that must be met before a defendant can raise a third party’s equal
protection issue: “The litigant must have suffered an ‘injury in fact,’ thus giving him or
her a ‘sufficiently concrete interest’ in the outcome of the issue in dispute, [citation]; the
litigant must have a close relation to the third party, [citation]; and there must exist some
hindrance to the third party’s ability to protect his or her own interests. [Citations.]”
(Powers v. Ohio (1991) 499 U.S. 400, 411.) Rojas has not shown Hispanics convicted in
Tulare County and required to install an ignition interlock device suffer some hindrance
to their ability to protect their own interests. If Tulare County’s inclusion in the pilot
program violated equal protection—a conclusion we have not reached—one who has
been adversely affected by that inclusion must raise the issue, not Rojas. Inclusion of
Tulare County in the pilot program had no impact on Rojas.
              Additionally, if Tulare County’s inclusion in the pilot program were to be
found to violate equal protection, the appropriate remedy would seem to be an order
removing Tulare County from the program, not declaring the entire pilot program
unconstitutional. Because Rojas would not personally benefit from such relief he lacks
standing to litigate the equal protection issue. “The constitutional element of standing is
plaintiff’s demonstration of any injury to himself that is likely to be redressed by
favorable decision of his claim. [Citation.]” (Regents of Univ. of Cal. v. Bakke (1977)
438 U.S. 265, 281, fn. 14.)
              Because we conclude Rojas lacks standing to raise an equal protection
claim in this matter and affirm the judgment, we need not address whether the superior
court erred in refusing to award him attorney fees under the private attorney general
statute, which provides for the award of attorney fees to a prevailing party in an action to
enforce an important right affecting the public. (Code of Civ. Proc., § 1021.5.) Our
resolution of the standing issue also makes it unnecessary for us to address whether

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Rojas’s writ petition below and this appeal are improper collateral attacks on his Los
Angeles driving under the influence conviction. (See In re Clark (1993) 5 Cal.4th 750,
765 [writ is not substitute for litigating issue on appeal from conviction].)
                                             III
                                       DISPOSITION
              The judgment is affirmed. The DMV shall recover its costs on appeal.




                                                   MOORE, J.

WE CONCUR:



O’LEARY, P. J.



FYBEL, J.




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