Opinion
E066452
09-01-2017
THE PEOPLE, Plaintiff and Respondent, v. LETICIA CATLINA MENDEZ, Defendant and Appellant.
Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FVI1500082) OPINION APPEAL from the Superior Court of San Bernardino County. Colin J. Bilash, Judge. Affirmed. Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Leticia Catlina Mendez pled guilty to one count of receiving a stolen vehicle. (Pen. Code, § 496d, subd. (a).) Subsequently, California voters enacted Proposition 47, the Safe Neighborhoods and Schools Act, which among other things established a procedure for specified classes of offenders to have their felony convictions reduced to misdemeanors and be resentenced accordingly. (§ 1170.18.) Defendant filed a petition for resentencing, pursuant to section 1170.18. A trial court found her ineligible for relief and denied the petition. Defendant now appeals. We affirm.
All further statutory references will be to the Penal Code, unless otherwise noted.
PROCEDURAL BACKGROUND
On January 9, 2015, defendant was charged by felony complaint with receiving a stolen vehicle (Pen. Code, § 496d, subd. (a), count 1) and the unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a), count 2).
Defendant entered a plea agreement on March 16, 2015, and pled guilty to receiving a stolen vehicle. (§ 496d, subd. (a), count 1.) In accordance with the plea agreement, the court dismissed the remaining count and granted her probation for a period of three years, under specified terms.
On August 25, 2015, defendant admitted that she violated several terms of her probation. The court reinstated her probation with the requirement that she serve one year in county jail. On December 24, 2015, defendant was released early after the successful completion of her treatment program.
On May 9, 2016, defendant filed a Proposition 47 petition for resentencing. On June 10, 2016, the court found that defendant's offense did not qualify for resentencing under Proposition 47 and denied the petition.
ANALYSIS
The Trial Court Properly Denied Defendant's Petition for Resentencing
Defendant argues the court erred in denying her Proposition 47 petition with regard to her section 496d conviction. The applicability of Proposition 47 to section 496d is currently under review before the California Supreme Court in People v. Varner (2016) 3 Cal.App.5th 360 (Varner), review granted November 22, 2016, S237679; People v. Nichols (2016) 244 Cal.App.4th 681, review granted April 20, 2016, S233055; People v. Peacock (2015) 242 Cal.App.4th 708, review granted February 17, 2016, S230948; and People v. Garness (2015) 241 Cal.App.4th 1370, review granted January 27, 2016, S231031. For the reasons stated post, we conclude the court properly denied her petition.
A. Relevant Law
On November 4, 2014, voters approved Proposition 47, the Safe Neighborhoods and Schools Act, which went into effect the next day. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) Proposition 47 reduced certain drug- and theft-related crimes from felonies or wobblers to misdemeanors for qualified defendants and added, among other statutory provisions, section 1170.18. Section 1170.18 creates a process through which persons previously convicted of crimes as felonies, which would be misdemeanors under the new definitions in Proposition 47, may petition for resentencing. (See People v. Lynall (2015) 233 Cal.App.4th 1102, 1108-1109.)
Specifically, section 1170.18, subdivision (f), provides: "A person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under [Proposition 47] had [Proposition 47] been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors."
As relevant to the present case, 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).) 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. (§ 496d, subd. (a).)
B. Proposition 47 is Not Applicable to Section 496d Offenses
In Varner, supra, 3 Cal.App.5th at page 366, this court recently concluded that a defendant is ineligible for Proposition 47 relief based on a conviction for violating section 496d, "because section 496d is not included in section 1170.18," and because "there is no indication that the drafters of Proposition 47 intended to include section 496d."
Under a recent amendment to rule 8.1115 of the California Rules of Court, we may rely on a Court of Appeal's decision as persuasive authority while review is pending. (Cal. Rules of Court, rule 8.1115(e)(1), eff. July 1, 2016.) --------
Furthermore, since section 1170.18, subdivisions (a) and (b), expressly include certain theft-related offenses, we presume the intent of the voters, and of the Legislature, was to exclude other theft-related offenses, such as section 496d, which were not specifically included under Proposition 47. To construe Proposition 47 as including section 496d would be inconsistent with our Supreme Court's instruction that we not "add to the statute or rewrite it to conform to some assumed intent not apparent from that language." (People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 571; see Varner, supra, 3 Cal.App.5th at pp. 367-368.)
Additionally, 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 the offense. (§ 1170.18, subd. (a).) Defendant is not such a person. Section 496, subdivision (a), as amended by Proposition 47, now requires the district attorney to charge the crime as a misdemeanor if the stolen property does not exceed $950. Although we recognize the language "any property," included in section 496, subdivision (a), is broad enough to encompass a stolen vehicle, Proposition 47 left intact the language in section 496d that makes a violation of that statute a wobbler. (§§ 17, subds. (a), (b), 496d, subd. (a).) In other words, Proposition 47 does not operate to reduce defendant's sentence because the prosecutor had the discretion to prosecute her section 496d crime as either a felony or a misdemeanor, even after the passage of Proposition 47, and regardless of the value of the motor vehicle. Thus, although defendant could have been guilty of a misdemeanor for violating section 496d, subdivision (a), had the People elected to prosecute the charge as a misdemeanor, defendant is not a person "who would have been guilty of a misdemeanor" had Proposition 47 been in effect at the time of the offense. (§ 1170.18, subd. (a), italics added.)
Language in other portions of Proposition 47 supports this conclusion. Section 490.2, subdivision (a), provides a definition of petty theft that 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 section 496 contains no reference to section 496d, and since Proposition 47 did not amend section 496d to require sentencing as a misdemeanor, it is reasonable to assume the drafters intended section 496d to remain intact as a wobbler, with the prosecution retaining discretion to charge a section 496d offense as either a felony or a misdemeanor. 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 Gikas v. Zolin (1993) 6 Cal.4th 841, 852 ["The expression of some things in a statute necessarily means the exclusion of other things not expressed."]; People v. Sanchez (1997) 52 Cal.App.4th 997, 1001.) We conclude that defendant's section 496d, subdivision (a) conviction does not qualify for redesignation under Proposition 47. Thus, the court properly denied her petition.
C. Defendant Failed to Establish the Value of the Vehicle
Assuming defendant's statutory interpretation of Proposition 47 is correct, she still failed to establish that she was eligible for relief. "[A] petitioner for resentencing under Proposition 47 must establish his or her eligibility for such resentencing." (People v. Sherow (2015) 239 Cal.App.4th 875, 878 (Sherow).) "The defendant must attach information or evidence necessary to enable the court to determine eligibility." (People v. Perkins (2016) 244 Cal.App.4th 129, 137 (Perkins).) To establish eligibility for resentencing under section 1170.18, defendant had the initial burden of showing that the value of the vehicle was less than $950. However, the record of conviction does not establish this fact, as defendant entered a guilty plea. Furthermore, she never stated in the petition that the vehicle was valued at less than $950, nor did she provide any supporting documentation. In other words, the petition provided no information whatsoever on the value of the vehicle to aid the trial court in determining whether defendant was eligible for resentencing. We conclude defendant did not meet her burden of providing evidence to establish she was eligible for resentencing on her convictions. (See Perkins, at p. 137.)
Defendant contends that the matter should be remanded to the trial court to give her "the opportunity to demonstrate, if she can," the value of the vehicle. As mentioned ante, "the statute required defendant to include information supporting [her] petition with [her] initial filing." (Perkins, supra, 244 Cal.App.4th at p. 138, italics added.) She claims that this procedure places form before substance and avers that "[p]ro per petitioners generally have no idea what specific facts they are required to assert in their petition." However, defendant's petition was filed on her behalf by an attorney.
Since defendant failed to provide any information that the value of the vehicle was less than $950, we cannot conclude the trial court erred in denying her petition. (See Perkins, supra, 244 Cal.App.4th at pp. 137-138.)
D. Defendant Has Not Shown an Equal Protection Violation
Defendant finally claims that equal protection principles require that her conviction under section 496d be reduced to a misdemeanor. She contends that, assuming Proposition 47 applies to section 496, subdivision (a), but not to section 496d, subdivision (a), the omission of section 496d from Proposition 47 violates her constitutional rights to equal protection under the law. This claim fails.
Defendant has not demonstrated that her conviction places her in a class of persons similarly situated to those who receive relief under Proposition 47. (See Cooley v. Superior Court (2002) 29 Cal.4th 228, 253 [" '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.' "].) She specifically contends that she is similarly situated to a person who is convicted of receiving low-value (under $950) property under section 496. Because defendant did not satisfy her burden of establishing the value of the stolen motor vehicle she received, she cannot establish she is similarly situated with a defendant convicted under section 496 of receiving stolen property worth $950 or less. (See ante, § C.)
Even if defendant were similarly situated with a defendant convicted of receiving stolen property worth $950 or less, her equal protection challenge must still fail. "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." ' " (Johnson v. Department of Justice (2015) 60 Cal.4th 871, 881.) "To 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.)
There are plausible reasons to treat sections 496 and 496d differently. The Legislature explicitly added section 496d to the Penal Code in order to provide "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 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.)
Another plausible reason for the disparity from excluding a section 496d conviction from qualifying for resentencing under Proposition 47 is the probable intent not 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.]" (People v. Wilkinson (2004) 33 Cal.4th 821, 838-839.)
Because there are plausible, legitimate reasons for distinguishing between defendants convicted of receiving stolen property worth $950 or less and defendants convicted of receiving a stolen motor vehicle, when the vehicle is worth $950 or less, defendant has not established the exclusion of the latter from relief under Proposition 47 is an equal protection violation.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. MILLER
J.