Filed 12/8/15 P. v. Salgado 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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


THE PEOPLE,

     Plaintiff and Respondent,                                         G051358

         v.                                                            (Super. Ct. No. 12WF1843)

MARIO SALGADO,                                                         OPINION

     Defendant and Appellant.



                   Appeal from a postjudgment order of the Superior Court of Orange County,
Jonathan S. Fish, Judge. Affirmed.
                   Susan S. Bauguess, 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, Christen Somerville,
Deputy Attorney General, for Plaintiff and Respondent.
               Mario Salgado appeals an order denying his petition for resentencing under
Proposition 47. Although he was not convicted of an offense that qualifies him for
resentencing, he contends equal protection principles require that his offense be treated as
such. We disagree and affirm the trial court’s order.
                                 PROCEDURAL BACKGROUND
               In 2012, Salgado was charged in a felony complaint with unlawfully taking
a vehicle in violation of Vehicle Code section 10851, subdivision (a).1 He was also
alleged to have suffered two prior strike convictions and served a prior prison term.
Before the preliminary hearing, Salgado pleaded guilty and admitted the prison prior in
exchange for dismissal of his prior strikes and a 16-month sentence. As part of his plea
agreement, Salgado admitted he “unlawfully drove a 1996 Honda Civic without the
consent of the owner and with the intent to temporarily deprive the owner of possession.”
However, there is nothing in the record indicating how much the vehicle was worth.
               On the heels of Proposition 47’s passage in November 2014, Salgado
petitioned the trial court to reduce his felony conviction to a misdemeanor and resentence
him accordingly. Although Proposition 47 does not apply to violations of section 10851,
Salgado argued his conviction fell within the scope of the initiative because the value of
the car he took did not exceed $950. Alternatively, Salgado argued he was entitled to
Proposition 47 relief as a matter of equal protection. The trial court denied his petition.
                                              DISCUSSION
               Appellant renews his claims regarding the scope of Proposition 47 and his
entitlement to equal protection under the law. However, we discern no basis for
disturbing the trial court’s ruling.
               “Proposition 47 reclassifies as misdemeanors certain non-serious,
nonviolent crimes that previously were felonies, and authorizes trial courts to consider


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


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resentencing anyone who is currently serving a sentence for any of the listed offenses.”
(People v. Awad (2015) 238 Cal.App.4th 215, 218.) The crime of unlawful vehicle
taking is a so-called “wobbler” offense because it is punishable in the court’s discretion
as a felony or a misdemeanor. (§ 10851, subd. (a); People v. Douglas (1999) 20 Cal.4th
85, 88; People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) The crime was
not reclassified as a pure misdemeanor by Proposition 47, nor is it listed within the text of
that provision. (See Pen. Code, § 1170.18.) Therefore, defendants who have been
convicted of that offense are generally not eligible for resentencing. (See People v. Page
(2015) 241 Cal.App.4th 714, 718 [noting that “the statutory language setting the
punishment for violations of . . . section 10851 remains the same, before and after
Proposition 47” and that the crime of unlawful vehicle taking “is not included among the
enumerated sections amended or added by Proposition 47”].)
              However, Proposition 47 did address the issue of theft-related offenses by
adding section 490.2 to the Penal Code. That provision effectively redraws the boundary
line between grand and petty theft in some cases. It provides, “Notwithstanding [Penal
Code] [s]ection 487 [defining grand theft] or any other provision of law defining grand
theft, obtaining any property by theft where the value of the money, labor, real or
personal property taken does not exceed nine hundred fifty dollars ($950) shall be
considered petty theft and shall be punished as a misdemeanor[.]” (Pen. Code, § 490.2,
subd. (a).) Unlike section 10851, Penal Code section 490.2 is expressly listed in
Proposition 47 as a criminal statute that has been added or amended by the terms of the
initiative. (Pen. Code, § 1170.18, subd. (a).) Therefore, if a person has been convicted of
an offense that comes within the terms of that statute, he or she would be entitled to seek
relief under Proposition 47.
              The main problem for Salgado is that there is nothing in the record of his
unlawful taking conviction that indicates the value of the car he took was $950 or less.
Moreover, in pleading guilty Salgado admitted only the intent to temporarily deprive the

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owner of possession, not the intent to steal, which is the crux of any theft offense.
Therefore, the conviction does not satisfy the criteria for petty theft under Penal Code
section 490.2.
              Relying on People v. Rodriguez (1998) 17 Cal.4th 253, Salgado contends
the prosecution had the burden of proving the value of the car he took and establishing he
was ineligible for relief under Proposition 47. However, Rodriguez is no help to Salgado
because it involved the sufficiency of the evidence to support a prior felony allegation for
purposes of the Three Strikes law. (Id. at pp. 261-262.) In that context, it makes sense to
impose the burden of proof on the prosecution because it is seeking to use the prior
felony conviction to increase the defendant’s punishment.
              In contrast, Proposition 47 is designed to ameliorate the effect of a prior
felony conviction. Because the initiative is designed for the defendant’s benefit, Salgado
had the burden of proving he satisfied the criteria for relief based on the record of his
conviction. (Pen. Code, § 1170.18, subd. (b); People v. Rivas-Colon (2015) 241
Cal.App.4th 444, 448-450; People v. Sherow (2015) 239 Cal.App.4th 875, 880.) Since
the record of Salgado’s unlawful vehicle taking conviction is bereft of evidence regarding
the value of the vehicle he took, he is not entitled to resentencing relief by virtue of Penal
Code section 490.2’s inclusion in Proposition 47.
              Salgado’s fallback position is that the equal protection clause requires his
unlawful vehicle taking conviction be treated the same way as a Penal Code section 490.2
conviction arising from the theft of a car valued at $950 or less. However, as explained
above, Salgado has failed to prove the value of the car he took. Thus, he cannot establish
he is similarly situated to persons who have violated Penal Code section 490.2, which is
fatal to his equal protection claim. (People v. Brown (2012) 54 Cal.4th 314, 328-330 [the
equal protection clause applies only when the state treats similarly situated persons in a
disparate manner].)
              Even if Salgado could satisfy the similarly-situated requirement, the law

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is clear that “‘neither the existence of two identical criminal statutes prescribing different
levels of punishments, nor the existence of a prosecutor’s discretion in charging under
one such statute and not the other violates equal protection principles.’ [Citation.]”
(People v. Page, supra, 241 Cal.App.4th at p. 719.) In other words, the state has
considerable leeway in terms of choosing which punishment is suitable for a particular
offender when his conduct violates more than one statute. So too does it have broad
authority to decide which offenders may qualify for leniency under a sentence reduction
scheme such as Proposition 47. (Ibid.) Just because Proposition 47 provides “for the
possibility of sentence reduction for a limited subset of those previously convicted of
grand theft (those who stole an automobile or other personal property valued $950 or
less), but not those convicted of [violating] section 10851,” that does not mean the law
violates equal protection. (Id. at pp. 719-720.) In fact, unless a defendant seeking
Proposition 47 relief can show he has been singled out for differential treatment based on
some invidious criteria, no equal protection violation will be found. (Ibid.) Because
Salgado has failed to make such a showing, his equal protection claim cannot prevail.
                                       DISPOSITION
              The trial court’s order denying Salgado’s Proposition 47 petition is
affirmed.



                                                   BEDSWORTH, ACTING P. J.

WE CONCUR:



MOORE, J.



FYBEL, J.


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