People v. Medina CA4/2 ( 2016 )

Filed 8/25/16 P. v. Medina 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E064325
v. (Super.Ct.No. FWV1403928)
ALEJANDRO MEDINA, 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.
Erica Gambale, 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.
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In this Proposition 47 case, defendant Alejandro Medina appeals an order denying
his petition for resentencing as to his conviction for receiving a stolen vehicle (Pen. Code,
§ 496d, subd. (a)).1 Defendant contends Proposition 47, the Safe Neighborhoods and
Schools Act (§ 1170.18), implicitly includes the offense of receiving a stolen vehicle
under section 496, subdivision (a), which makes the receipt of stolen property valued at
$950 or less punishable as a misdemeanor under Proposition 47. Defendant alternatively
contends that denial of his petition for resentencing violated his equal protection rights.
We conclude a conviction for violating section 496d, subdivision (a), does not
qualify for resentencing under Proposition 47. We also reject defendant’s equal
protection challenge. The trial court therefore did not err in denying defendant’s petition
for resentencing, and the judgment is affirmed.
I
FACTS AND PROCEDURAL BACKGROUND
In October 2014, defendant pled no contest to buying or receiving a stolen motor
vehicle (§ 496d). Defendant also admitted a gang enhancement (§ 186.22, subd. (b)) and
a prior conviction for receiving a stolen vehicle (§ 666.5, subd. (a)). During the plea
hearing, counsel stipulated that the police reports in the court file provided a factual basis
for the plea. The trial court sentenced defendant to three years in prison.
In July 2015, defendant filed a petition for resentencing under Proposition 47. The
trial court held a hearing on the petition and denied the petition on the ground defendant
1 Unless otherwise noted, all statutory references are to the Penal Code.
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was “statutorily ineligible due to the nature [of] the charges. . . . And again it is this
Court’s view that the charge of 496(d), receiving stolen property, a stolen vehicle, the
defendant is statutorily ineligible due to that charge regardless of the value of the
vehicle.”
II
PROPOSITION 47
On November 4, 2014, voters enacted Proposition 47, which went into effect the
next day. (Cal. Const., art. II, § 10, subd. (a).) “Proposition 47 makes certain drug- and
theft-related offenses misdemeanors, unless the offenses were committed by certain
ineligible defendants. These offenses had previously been designated as either felonies
or wobblers (crimes that can be punished as either felonies or misdemeanors).” (People
v. Rivera (2015) 233 Cal. App. 4th 1085, 1091.) “Proposition 47 also created a new
resentencing provision: section 1170.18. Under section 1170.18, a person ‘currently
serving’ a felony sentence for an offense that is now a misdemeanor under Proposition
47, may petition for a recall of that sentence and request resentencing in accordance with
the statutes that were added or amended by Proposition 47.” (Id. at p. 1092.)
Proposition 47 amended section 496 (buying or receiving stolen property) to
provide that if the value of the property at issue is $950 or less, the offense is a
misdemeanor. (§ 496, subd. (a).) The former 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 charging the crime as
a misdemeanor would be in the interests of justice. (Former § 496, added by Stats. 2011,
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ch. 15, § 372, eff. April 4, 2011, operative Oct. 1, 2011.) In effect, Proposition 47
changed the section 496 offense of receiving stolen property not exceeding $950, from a
wobbler to a misdemeanor. Proposition 47, however, did not amend section 496d, the
section under which defendant was convicted for receiving a stolen vehicle.
III
ELIGIBILITY FOR RESENTENCING UNDER SECTION 496D
Defendant contends his conviction for violating section 496d, subdivision (a),
qualifies for resentencing under Proposition 47. The trial court ruled a section 496d
offense is ineligible for resentencing. We agree.
Section 496d, subdivision (a), states in relevant part that “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, selling, or withholding any motor
vehicle . . . from the owner, knowing the property to be so stolen or obtained, shall be
punished by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months or
two or three years or a fine of not more than ten thousand dollars ($10,000), or both, or
by imprisonment in a county jail not to exceed one year or a fine of not more than one
thousand dollars ($1,000), or both.” The crime of receiving a stolen vehicle in violation
of section 496d, subdivision (a), remains a wobbler, a crime punishable as either a felony
or a misdemeanor. (§§ 17, subds. (a) & (b), 496d, subd. (a).)
Proposition 47’s resentencing provision, section 1170.18, subdivision (a),
provides: “A person currently serving a sentence for a conviction . . . of a felony . . . who
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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 Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those
sections have been amended or added by this act.”
In order to be eligible for resentencing, defendant must be a person “who would
have been guilty of a misdemeanor” if Proposition 47 had been in effect at the time of his
offense. Because a section 496d crime remains a wobbler, defendant would not
necessarily have been guilty of a misdemeanor had Proposition 47 been in effect when
defendant committed the section 496d crime of receiving a stolen vehicle. After the
voters approved Proposition 47, the prosecution retained the ability to charge a section
496d violation as either a misdemeanor or a felony. Therefore defendant is ineligible for
resentencing under Proposition 47. He is not a person “who would have been guilty of a
misdemeanor” under Proposition 47.
Defendant contends that section 496, as amended by Proposition 47, provides
broad language impliedly qualifying a section 496d crime for resentencing as a
misdemeanor if the stolen vehicle is worth $950 or less. Section 496 is one of the
enumerated statutes qualifying for resentencing under section 1170.18, subdivision (a).
Defendant reasons that because section 496, subdivision (a), makes receipt of any stolen
property worth less than $950 a misdemeanor, and a vehicle is a form of property, his
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conviction under section 496d for receiving a stolen vehicle must be reduced to a
misdemeanor. We are not persuaded.
We recognize the language, “any property,” included in section 496, subdivision
(a) is broad enough to encompass a stolen vehicle. However, Proposition 47 only applies
to those crimes in which the defendant “would have” been guilty of a misdemeanor, as
opposed to crimes in which a defendant “could have” been guilty of a misdemeanor if the
prosecution in its discretion chose to charge the defendant more leniently. In the instant
case, Proposition 47 does not operate to reduce defendant’s sentence because the
prosecution would have had the discretion to prosecute defendant’s section 496d crime as
a felony even after the passage of Proposition 47, and most likely would have done so,
because the same sentencing considerations applied to defendant’s offense before as well
as after the passage of Proposition 47.
Language in other portions of Proposition 47 also supports this conclusion.
Section 490.2, which was added by Proposition 47, provides a definition of petty theft
which begins with the phrase, “Notwithstanding Section 487 or any other provision of
law defining grand theft . . . .” Similarly, section 459.5, which was also added by
Proposition 47, provides a definition of shoplifting which begins with the phrase:
“Notwithstanding Section 459 [burglary] . . . .” This “notwithstanding” language is
notably absent from section 496. Because that provision contains no reference to section
496d and Proposition 47 did not amend section 496d to require sentencing as a
misdemeanor, it is reasonable to assume the drafters of Proposition 47 intended section
496d to remain intact as a wobbler, with the prosecution retaining discretion to charge a
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section 496d offense as a felony. The absence of any reference in Proposition 47 to
section 496d, including in the list of crimes eligible for resentencing, shows that section
496d was intended to remain beyond Proposition 47’s reach. (See Barnhart v. Peabody
Coal Co. (2003) 537 U.S. 149, 168.) We conclude defendant’s section 496d conviction
therefore does not qualify for resentencing as a matter of law.
IV
EQUAL PROTECTION
Defendant alternatively argues that denying his petition for resentencing on his
section 496d conviction for receiving a stolen vehicle violates his constitutional right to
equal protection. Defendant argues that a person convicted of receiving a stolen vehicle
with a value of $950 or less, in violation of section 496d, is similarly situated to a person
convicted of receiving stolen property or theft of property with a value of $950 or less, in
violation of sections 496, subdivision (a), 487, subdivision (d)(1), or 490.2. Under
Proposition 47, section 496 and 490.2 convictions are listed as eligible for resentencing,
whereas a section 496d conviction is not a listed eligible offense.
The federal equal protection clause (U.S. Const., 14th Amend.) and the California
equal protection clause (Cal. Const., art. I, § 7, subd. (a)) provide that all persons
similarly situated should be treated alike. The California Supreme Court in People v.
Wilkinson (2004) 33 Cal. 4th 821, 838 (Wilkinson) instructs that “[a] defendant . . . ‘does
not have a fundamental interest in a specific term of imprisonment or in the designation a
particular crime receives.’ [Citations.]” Therefore, the rational basis test is applicable
here to an equal protection challenge involving “‘an alleged sentencing disparity.’”
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(Ibid.) Our Supreme Court also has applied the rational basis test to an alleged statutory
disparity: “Where, as here, a disputed statutory disparity implicates no suspect class or
fundamental right, ‘equal protection of the law is denied only where there is no “rational
relationship between the disparity of treatment and some legitimate governmental
purpose.”’ [Citation.]” (Johnson v. Department of Justice (2015) 60 Cal. 4th 871, 881
(Johnson).)
In Johnson, the court explained that application of the rational basis standard
“‘does not depend upon whether lawmakers ever actually articulated the purpose they
sought to achieve. Nor must the underlying rationale be empirically substantiated.
[Citation.] While the realities of the subject matter cannot be completely ignored
[citation], a court may engage in “‘rational speculation’” as to the justifications for the
legislative choice [citation]. It is immaterial for rational basis review “whether or not”
any such speculation has “a foundation in the record.”’ [Citation.]” (Johnson, supra, 60
Cal.4th at p. 881.) Therefore, “[t]o mount a successful rational basis challenge, a party
must ‘“negative every conceivable basis”’ that might support the disputed statutory
disparity. [Citations.] If a plausible basis exists for the disparity, courts may not second-
guess its ‘“wisdom, fairness, or logic.”’ [Citations.]” (Ibid.)
Defendant argues that a defendant would qualify for resentencing for the same
criminal act of receiving a stolen vehicle worth $950 or less, if convicted under section
496. But section 496, is a more general statute, which is not limited just to the receipt of
stolen vehicles, as is section 496d, subdivision (a). Under the well-known cannon of
statutory construction, “‘A specific provision relating to a particular subject will govern a
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general provision . . . .’” (People v. Tanner (1979) 24 Cal. 3d 514, 538.) Here, the
district attorney chose to prosecute defendant under the narrower statute, section 496d,
which specifically applies to defendant’s crime of receiving a stolen vehicle. It is
reasonable to assume the voters intended that the crime of receiving a stolen vehicle
would normally be charged and prosecuted under the more narrowly tailored statute,
section 496d, rather than section 496, and that resentencing would not apply under
Proposition 47 to a conviction for a section 496d crime, since section 496d is not
mentioned or amended in Proposition 47.
There are several plausible reasons for the resentencing disparity between a
section 496d conviction and a section 496 conviction. One reason is that the offense of
buying or receiving a stolen vehicle, as opposed to other property, may have greater
adverse consequences for the victims than other theft-related offenses. The owners of
vehicles are often dependent on their vehicles for transportation to work and school, and
for obtaining the necessities of life, which is not as likely to be the case with theft of
other forms of property.
Another reason is that, unlike other types of stolen property, stolen vehicles are
often dismantled and sold for parts in “chop shops” which can raise their worth above
retail value. Section 496d was 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.) The statute was intended to provide “‘additional tools to law
enforcement for utilization in combating vehicle theft and prosecuting vehicle thieves.
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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 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.)
A third plausible reason for the disparity arising from excluding a section 496d
conviction from qualifying for resentencing under Proposition 47 is that the voters did
not intend to eliminate prosecutorial discretion to charge a section 496d offense as either
a felony or misdemeanor. Our Supreme Court has ruled that “numerous factors properly
may enter into a prosecutor’s decision to charge under one statute and not another, such
as a defendant’s background and the severity of the crime, and so long as there is no
showing that a defendant ‘has been singled out deliberately for prosecution on the basis
of some invidious criterion,’ that is, ‘“one that is arbitrary and thus unjustified because it
bears no rational relationship to legitimate law enforcement interests[,]”’ the defendant
cannot make out an equal protection violation. [Citation.]” (Wilkinson, supra, 33 Cal.4th
at pp. 838-839.) These plausible reasons provide a rational basis for any resentencing
disparity that might exist between a section 496d conviction for buying or receiving a
vehicle and a section 496 conviction.
In addition, someone who knowingly receives or buys a stolen vehicle is culpable
of intentionally perpetuating and exploiting a vehicle theft by failing to report the theft to
law enforcement by failing to return the vehicle to the owner. Such conduct provides car
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thieves with a financial incentive to steal and dispose of vehicles. Imposing harsher
penalties on those who knowingly buy or receive stolen vehicles may be intended to deter
vehicle theft. This constitutes another plausible, rational reason for any disparity in
resentencing as to section 496d crimes.
We also reject defendant’s equal protection challenge asserting that those
convicted of a vehicle theft crime (§§ 487, subd. (a), 490.2) are similarly situated to
defendants convicted of the section 496d crime of receiving a stolen vehicle. Those who
steal a vehicle are not similarly situated to those who buy or receive a stolen vehicle, for
purposes of equal protection. Theft and the crime of receiving or buying stolen property
are entirely different crimes, even if the stolen property may be of the same nature.
Denying defendant’s petition for resentencing on his section 496d conviction therefore
does not violate defendant’s equal protection rights. Defendant is not similarly situated
to those resentenced on convictions for thefts and there are plausible reasons for any
disparity in resentencing on a section 496d conviction and convictions for other theft
related crimes.
Because we conclude defendant’s conviction for violating section 496d,
subdivision (a), does not qualify for resentencing as a matter of law, defendant’s due
process challenge to not receiving an evidentiary hearing on his resentencing petition
need not be addressed as moot.
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V
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
McKINSTER
Acting P. J.
MILLER
J.
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