Filed 9/23/16 P. v. Suniga CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F071326
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. VCF261041)
                   v.

ANTHONY SUNIGA,                                                                          OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Tulare County. Gary L.
Paden, Judge.
         Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Harry
Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-


*        Before Levy, Acting P.J., Kane, J. and Poochigian, J.
       Appellant Anthony Suniga appeals from the denial of his petition for resentencing
under Penal Code section 1170.18, seeking modification of the sentence imposed on his
prior conviction for receiving a stolen vehicle (Pen. Code, § 496d, subd. (a)). Appellant
contends the denial of his request violates principles of equal protection. For the reasons
set forth below, we affirm.
                 FACTUAL AND PROCEDURAL BACKGROUND
       In December 2011, appellant was charged with multiple crimes, including felony
charges for unlawful driving or taking of a vehicle (Veh. Code, § 10851) and receiving a
stolen vehicle (Pen. Code, § 496d), and misdemeanor charges of being an unlicensed
driver (Veh. Code, § 12500) and giving false information to a police officer (Veh. Code,
§ 31). Following a jury trial where appellant was convicted of the charged
misdemeanors, but not resulting in a verdict on the felony counts, appellant pled nolo
contendere to the alleged violation of Penal Code section 496d. Appellant received
probation.
       On May 22, 2014, appellant was found to have violated the terms of his probation.
As a result, appellant’s probation was terminated and he received an eight-month
sentence on the prior conviction under Penal Code section 496d, ordered to run
consecutive to his sentence on the charges underlying the probation violation.
       After Proposition 47 passed, appellant sought to have his sentence under Penal
Code section 496d reduced to a misdemeanor pursuant to Penal Code section 1170.18.
The request was opposed by the People and denied by the court. It was noted at the time
that appellant had raised an equal protection argument.
       This appeal timely followed.
                                      DISCUSSION
       Appellant contends the trial court wrongly denied his petition for resentencing.
He claims his sentence violates equal protection principles and must be reduced to a
misdemeanor because there is no rational basis why his conviction under Penal Code

                                             2.
section 496d should be punished more harshly than a conviction for theft of a vehicle
under Penal Code section 497.
Standard of Review and Applicable Law
       “The concept of equal treatment under the laws means that persons similarly
situated regarding the legitimate purpose of the law should receive like treatment.
[Citation.] ‘“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.] This initial inquiry is not
whether persons are similarly situated for all purposes, but “whether they are similarly
situated for purposes of the law challenged.”’” (People v. Morales (2016) 63 Cal.4th
399, 408 (Morales).)
       If this showing is met, a further analysis is undertaken. “‘The concept [of equal
protection] recognizes that persons similarly situated with respect to the legitimate
purpose of the law receive like treatment, but it does not … require absolute equality.
[Citations.] Accordingly, a state may provide for differences as long as the result does
not amount to invidious discrimination.’” (People v. Cruz (2012) 207 Cal.App.4th 664,
675.) “‘In resolving equal protection issues, the United States Supreme Court has used
three levels of analysis. Distinctions in statutes that involve suspect classifications or
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.’” (Ibid.)
       The determination of a statute’s constitutionality is a question of law and is thus
considered de novo. (People v. Health Laboratories of North America, Inc. (2001) 87
Cal.App.4th 442, 445.)



                                              3.
Denying Appellant’s Resentencing Request Is Not an Equal Protection Violation
       Relying on People v. Noyan (2014) 232 Cal.App.4th 657 (Noyan), appellant
claims it violates equal protection to punish theft of a vehicle in a lesser manner than
receiving the same stolen vehicle. We disagree.
       Appellant’s reliance on Noyan is misplaced. In Noyan, the court was not faced
with determining the impact of a retroactive application of sentencing changes but, rather,
with the impact of legislative changes on sentencing for postchange convictions. (Noyan,
supra, 232 Cal.App.4th at pp. 663–664.) Thus, its analysis as to whether those suffering
new convictions for differing crimes were similarly situated is inapplicable. In addition,
appellant’s argument wrongly assumes that receiving a stolen vehicle is punished more
harshly than taking that same vehicle. Under Vehicle Code section 10851, the taking of a
motor vehicle may still be punished as a felony. (See Veh. Code, § 10851.)
       Turning to whether an equal protection claim exists in this case, our Supreme
Court has noted why there is no equal protection obligation to make revised sentencing
provisions retroactive in the context of Proposition 47. “Persons resentenced under
Proposition 47 were serving a proper sentence for a crime society had deemed a felony
(or a wobbler) when they committed it. Proposition 47 did not have to change that
sentence at all. Sentencing changes ameliorating punishment need not be given
retroactive effect. ‘“The Legislature properly may specify that such statutes are
prospective only, to assure that penal laws will maintain their desired deterrent effect by
carrying out the original prescribed punishment as written.”’” (Morales, supra, 63
Cal.4th at pp. 408–409.). The fact that the electorate chooses to permit some convictions
to be retroactively reduced, but not others, does not show an equal protection violation
because the electorate’s legitimate choice regarding which convictions receive retroactive
application differentiates the groups. (See People v. Floyd (2003) 31 Cal.4th 179, 191




                                             4.
[“‘[T]he 14th Amendment does not forbid statutes and statutory changes to have a
beginning, and thus to discriminate between the rights of an earlier and later time.’”].)1
                                        DISPOSITION
       The judgment is affirmed.




1       Even if it was shown that two similarly situated groups were being treated differently,
there appears to be a rational basis for punishing the receipt of stolen vehicles differently than
those who have stolen a vehicle. The theft of one’s vehicle can substantially harm those most
vulnerable in society, who may rely heavily on their vehicles to survive. Even if punishments for
stealing vehicles are reduced, there is still a rational incentive to eliminate the source of income
that makes those thefts worth the criminal risk. Thus, increased potential punishments for
receiving stolen vehicles can assist with public policy goals that are not inconsistent with
reducing criminal punishments for nonviolent theft. (See People v. Wilkinson (2004) 33 Cal.4th
821, 840 [decision of how long a particular punishment should be is left to the Legislature,
provided they act rationally].)


                                                5.
