PEOPLE v. PAGE (To be called and continued to the September 2017 calendar.)Appellant’s Petition for ReviewCal.November 24, 20153230793 COPY IN THE SUPREME COURT FOR THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, ) Fourth District Court of ‘Appeal Plaintiff and Respondent, No. E06276 . SUPREME COU TIMOTHY WAYNEPAGE, 3 $y Defendant and Appellant. ) NOV 2 4 20% Frank A. MicGuire . 6-"s o Ian PETITION FOR REVIEW Deputy Appeal from the Superior Court of California San Bernardino County Case No. FVI1201369 Honorable Lorenzo R. Balderrama and Michael A. Smith, Judges JEFFREY S. KROSS _ State Bar No. 142882 P.O. Box 2252 Sebastopol, CA 95473-2252 (707) 823-8665 kross142882@gmail.com Attorney for Appellant TIMOTHY WAYNE PAGE By appointmentofthe - Court ofAppeal under the Appellate Defenders,Inc. : Independent Case System TABLE OF CONTENTS Page TABLE OF CASES AND AUTHORITIES....ccccccccccsccsssesssesesessesseeseesesececane 4 PETITION FOR REVIEW 00... ccccccccccscteeeeseseeseesenecseeassesssescseeessesssessssuseones 5 QUESTIONS PRESENTED FOR REVIEW .......cccccccscsesescessesesscsrassseencerens 6 NECESSITY FOR REVIEW on. ..ecccccccsesssesesseseeseseecsessesscsscsesscesscauersaaeesesenss 6 STATEMENTOF THE CASEooo. ecececcccscsscseesesesseeeecesesscsesessscssevassesaeennees 10 ARGUMENT 0. occeccceeecescneeecsceeescenensssnesessseseseseesecseseaeceecessessssvateversneeses 10 UNDER PROPOSITION 47, A CONVICTION FOR TAKING AN AUTO UNDER VEHICLE CODE SECTION 10851 SHOULD BE ELIGIBLE FOR THE SAME REDUCTION TO A MISDEMEANOR AS WOULD A VEHICLE STOLEN UNDER PENAL CODE SECTION 487......cccccccccsesscsersesseeeeeees 10 A. A violation of Vehicle Code section 10851, subdivision (a) must be considereda theft for purposes Of Section 1170.18. occccc ccsescssscsssscesesecesscsccssssesevarcsestersetsesseeees 10 1. Section 1170.18 includes violations of section 487 by reference. ..........cccccececeeeeesceeeteeeeesgoccagececceeeeeeesessnseaeeaseseseeseeecees ll 2. A violation of Vehicle Code section 10851, subdivision (a) is a lesser included offense to a violation of Section 487. .....cccccceeseecceeeseesecsseesceccsesscecsccees 12 3. Section 1170.18 applies to a violation of Vehicle Code section 10851, subdivision (a). .....c.ccceccescessesesseeees 13 B. TheEqual Protection Clause requires that appellant’s conviction for unlawfully taking a vehicle be treated in the same manneras a conviction for auto theft under section 487, subdivision (d)(1). .....c.c..cccccesscececessceseesesesececsee 15 1. The twoclasses ofthieves are similarly situated. .....0...ceecee. 15 2. The law should not discriminate against | a lesser Offender. ....... i ecccecessesesssesesscscessscsesssssescsesstsessescestsrecsesess 16 3. Standard of review for disparate treatment. .0.0......0cccccceeseesees 17 4. There is norational basis for disparate treatment.................0.0.. 19 TABLE OF CONTENTS (continued) Page CONCLUSION......cccccccecscccseeseeseeeseeseeseeeceeceeeeaeesaseseesaeceseecsseseeensseeeensesseease 21 WORD COUNTCERTIFICATION 0... cccceceesseseeseeseeeeenesnsereaseessseeneenes 21 COURT OF APPEAL’S OPINION.....ccccccccceceseeseseenseenseeneeeeees Appendix TABLE OF CASES AND AUTHORITIES Cases Pages Apprendi v. New Jersey (2000) 530 U.S. 466 oo...cecesccceteseeeeeneerees 19 Cooley v. Superior Court (2002) 29 Cal.4th 228 ooo. ceeecseeeeeeeteeees 16 Horwich v. Superior Court (1999) 21 Cal.4th 272 oceeeeseeeeeeseeseees 13 In re Estrada (1965) 63 Cal.2d 740 eceececeaceseesessecesenssseteeeseeeeeaeesanens 14 Johnson v. Department ofJustice (2015) 60 Cal.4th 871 otecesses 16 Kaslerv. Lockyer (2000) 23 Cal.4th 472 oo... ecccccseeccssseeteteeseseescaeeeeeeeens 17 Lungren v. Deukmejian (1988) 45 Cal.3d 727 oo... .ceccccesceesseeeseeesnteeeeeeenes 7,8 Newland v. Board ofGovernors (1977) 19 Cal.3d 705... .eceeeeeeeeeneeees 17 People v. Austin (1981) 30 Cal.3d 155 ooceceee cneseaeeenaneenaee 18 People v. Barrick (1982) 33 Cal.3d 115...cece eecceccccsesesseseessetessneeeaeens 12 People v. Brown (2012) 54 Cal4th 314 oo... cccccceececeeceeseeeeeeeseessceeeeenseees 16 People v. Buss (1980) 102 Cal.-App.3d 781 oo... eeeeeeececeeseeseeseereetseseeeesees 12 People v. Canty (2004) 32 Cal.4th 1266 occcccscseesesecseessneeerseeneesaes 8 People v. Cole (2007) 152 Cal-App.4th 230 oecccecseseseteetesssessseenss 20 People v. Garza (2005) 35 Cal4th 866 0.0... ccccececececcesneesseteseesetenseneeceaees 12 People v. Hofsheier (2006) 37 Cal.4th 1185 oo. eeeeeeeeeeseteeeees 16,17,20 People v. Jones (1993) 5 Cal.4th 1142 occceeeeeceeeseetseeetseeesseeeees 13 People v. Kehoe (1949) 33 Cal.2d 711 w...ccceccccscccsesccceseseesseseesessesteeees 12 People v. King (1993) 5 Cal.4th 59 oo... ceececcesescccessecsseeeesseeseeeseessnevseseeeeseesens 8 People v. Marshall (1957) 48 Cal.2d 394 oieieeeecesscesceeeeeeteeeseneeteees 12 People v. Morris (1988) 46 Cal.3d 1 o..ececceeeesseccesseeesseeeseeeeeeesetssseeessseeees 14 People v. Olivas (1976) 17 Cal.3d 236 occ eceeceeeseeceseeeeseeeeeeeeteeseeees 17,18,19 People v. Pieters (1991) 52 Cal.3d 894 oo... eeeceeecccsseeeesesseeeseeeseeesseeeeseaseens 8 People v. Rizo (2000) 22 Cal4th 681 oo... .cccecceesccecessesesseeeesseeesseesseeseesanes 13 People v. Romanowski(2015) —_Cal-App-4thoeeceececeeeseeeeees 8 People v. Romo (1975) 14 Cal.3d 189 wo.ccccccccsccsessesseessssssecsssedeeeeesesseseeasens 9 People v. Vera (1997) 15 Cal.4th 269 oo... cceccccsceseceeseeeseeeseeeeeeetseeesaeeesaees 12 People v. Williams (1983) 140 Cal.App.3d 445 oo. cceecccessesesseeesserens 18 Romerv. Evans (1996) 517 U.S. 620 .occccccccceccecssseeesesteessseesseeeesseessesenanes 17 Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal4th 220 oo... eeccsesscceseeceeeeeseeeeeeeseeeeeeeesseeesseeeenens 14 Warden v. State Bar (1999) 21 Cal.4th 628 0... cccecceesssescesetsneeees 17,20 Wygant v. Jackson Board ofEducation (1986) 476 U.S. 267 ....eeesecsceeeeee 19 Constitutional authority California Constitution; art. [, § 7 .0..ccc cc ccecscccsecsseccesessccsssesecsessseeseseees 15 United States Constitution, Fourteenth Amendment ...00..... cece cceccceeeees 15 Statutes Penal Code § 487 ooescsecneseeeesteeeeeseeeneeeeeeaeeseeseaesneeseneenees passim Penal Code § 490.2 oo...cece ces cesseeceseeseeseaecsessescscsacatsenseseeseesensens passim Penal Code § 1170.18 oo...ccccceecseccesesecseeecsseesenaeeesscasseenaeaeneees passim Vehicle Code § 10851 oo... eceecereeeeeeeneeeeeeeeesLe eeseesseteetaceaneseeeeess passim IN THE SUPREME COURT FOR THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, ) Plaintiff and Respondent, v TIMOTHY WAYNEPAGE, Defendant and Appellant. ) On Appeal from the Superior Court of California Fourth District Court of Appeal No. E062760 San Bernardino County Case No. FVI1201369 PETITION FOR REVIEW TO THE HONORABLE TANI CANTIL-SAKAUYE, CHIEF JUSTICE, AND THE HONORABLEJUSTICES OF THE SUPREME COURT: Pursuantto Rule 8.500(a), California Rules of Court, appellant Timothy Wayne Page herebypetitions this court to grant review from the published opinion filed by Division Twoofthe Fourth District Court of Appealin the aboveentitled appeal on October 23, 2015. (The Court of Appeal’s opinionis attached hereto as the appendix.) Appellant did not file a petition for rehearing in the Court of Appeal in this matter. QUESTIONS PRESENTED FOR REVIEW 1. Penal Code section 1170.18', as enacted via Proposition 47 by popular vote on November4, 2014, added section 490.2, which provides that the taking of any property less than or equal to $950 in value shall be considered petty theft and shall be punished as a misdemeanor. Should this provision equally apply to the taking of a motor vehicle under Vehicle Code section 10851 (assuming the value thereof does not exceed $950), although that statute neither was added nor amended by Proposition 47, because taking a vehicle is a lesser included offense to grand theft of an automobile? 2. Doesit violate constitutional equal protection doctrines to allow the theft of an inexpensive vehicle charged under section 487, subdivision (d)(1) -- which requires the specific intent to permanently deprive the owner of his or her vehicle -- to be punished as a misdemeanor, whereas the taking of a vehicle charged under Vehicle Code section 10851 -- which does not require an intent to permanently deprive -- still may be punished as a felony? NECESSITY FOR REVIEW 1. Division Twoofthe Fourth District Court of Appeal held that because the plain language of section 1170.18 limits application of its provisions to statutes that were added or amended underProposition 47, convictions for the taking of a vehicle charged under Vehicle Code section 10851 -- which neither was added nor amended by Proposition 47 -- are not 1. Further statutory references are to the Penal Code, unless otherwise designated. subject to the ameliorative resentencing provisions of section 1170.18, even if worth less than $950. However, the Legislative Analyst explained to the voting population of California the intended affects of Proposition 47, thus: “Under current law,theft ofproperty worth $950orless is often chargedaspetty theft, whichis a misdemeanoror an infraction. However, such crimes can sometimes be charged as grand theft, which is generally a wobbler. For example, a wobbler charge can occurif the crime involves the theft of certain property (such as cars) or if the offender has previously committed certain theft-related crimes. This measure would limit when theft of - property of $950 orless can be charged as grand theft. Specifically, such crimes would no longer be charged as grandtheft solely becauseofthe type ofproperty involved or because the defendant had previously committed certain theft-related crimes.” (Ballot Pamp., Gen. Elec. (Nov. 4, 2014) analysis by Legislative Analyst, p. 35, emphasis added.) Asthis court has observed, ““[T]he “plain meaning”rule does not prohibit a court from determining whether the literal meaning of a statute comports with its purpose or whether such a construction of one provision is consistent with other provisions of the statute. The meaningofa statute may not be determined from a single word or sentence; the words must be. construed in context, and provisionsrelating to the same subject matter must be harmonizedto the extent possible. [Citation.] Literal construction should notprevailif it is contrary to the legislative intent apparent in the statute. Theintent prevails overtheletter, and the letter will, if possible, be so read as to conform to the spirit of the act.’ (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.)” (People v. King (1993) 5 Cal.4th 59, 69.) Moreover,“‘[i]t is a settled principle of statutory interpretation that language ofa statute should not be given literal meaning if doing so would result in absurd consequenceswhich the Legislature did not intend.’” (People v. Pieters (1991) 52 Cal.3d 894, 898-899.) This rule applies equally to statutes that have been adopted by the voters. (People v. Canty (2004) 32 Cal.4th 1266, 1276; Lungren v. Deukmejian, supra, 45 Cal.3d at p. 735.) Whereasit appears California voters intended that the resentencing provisions of Proposition 47 would apply to the taking of an inexpensive _ vehicle, possibly for a temporary period, as well as the permanenttheft of someone’s inexpensive vehicle, this court should grant review ofthis important question of law in orderto effectuate that popular intention. (Rule 8.500(b)(1), Cal. Rules of Court.) . Moreover, in People v. Romanowski (B263164; November 13, 2015) ___Cal.App.4th _, Division Eight of the Second District Court of Appeal recently held that Proposition 47 reduced the offense of theft of access card information under 484e, subdivision (d) to a misdemeanor, provided the theft involved property valuedat less than $950. The Romanowski court held thus despite the fact that section 484e, subdivision (d) was not expressly amended nor added by Proposition 47. Therefore, review ofthis matter additionally is warranted to secure uniformity of decision. (Rule 8.500(b)(1), Cal. Rules of Court.) 2. Constitutional doctrines of equal protection provide relief from disparate treatment for those similarly situated. Yet under the Court of Appeal’s interpretation of Proposition 47, a person who took someone’s inexpensive vehicle with the specific intent to permanently deprive that person of his or her vehicle would be subject to punishment as a misdemeanant, whereas a person who only temporarily borrowed that same vehicle is subject to punishmentas a convicted felon. This interpretation results in a potentially absurd consequence. Moreover, the Court of Appealrelied in part on this court’s statement in People v. Romo (1975) 14 Cal.3d 189, 197 that “a car thief may not complain because he may have been subjected to imprisonment for more than 10 years for grand theft of an automobile [citations] when, under the same facts, he might have been subjected to no more than 5 years under the provisions of section 10851 of the Vehicle Code.” (Slip opinion, p. 7, at appendix.) This court’s observation in People v. Romo, supra, however, speaks to the obverse situation ofthat at issue here: of course one who specifically intends to permanently deprive the ownerofthe vehicle should be subject to the higher penalty provision. By contrast, under the Court of Appeal’s interpretation of Proposition 47, a person whojust intended to temporarily borrow the inexpensive vehicle would be subject to a felony conviction, whereas a defendant who specifically intended to forever deprive the owner of that vehicle might be sentenced as a misdemeanant. This court therefore should grant review in orderto rectify this apparent equalprotection violation. (Rule 8.500(b)(1), Cal. Rules of Court.) STATEMENT OF THE CASE “On June 8, 2012, defendant pleaded guilty to three counts, including the unlawful taking of a vehicle (Veh. Code, § 10851, subd.(a)), evading an officer with willful disregard for safety (Veh. Code, § 2800.2, subd. (a)), and resisting an executive officer (Pen. Code, § 69)). He also admitted oneprior strike conviction and two prison priors. Pursuant to the plea agreement, he received a sentence of 10 years eight months. [{]] On November19, 2014, defendantfiled in propria persona petition for resentencing pursuant to Proposition 47. The trial court summarily denied the request on December26, 2014.” (Slip opinion, p. 2, at appendix.) Division Twoofthe Fourth District Court of Appeal filed a published opinion on October 23, 2015 and affirmed the superior court’s order denying appellant’s petition for resentencing. (See opinion at appendix.) ARGUMENT UNDER PROPOSITION 47, A CONVICTION FOR TAKING AN AUTO UNDER VEHICLE CODE SECTION 10851 SHOULD BE ELIGIBLE FOR THE SAME REDUCTION TO A MISDEMEANOR AS WOULD A VEHICLE STOLEN UNDER PENAL CODE SECTION 487 A. A violation of Vehicle Code section 10851, subdivision (a) must be considered a theft for purposes of section 1170.18. Proposition 47 was enacted by the voters on November5, 2014. The proposition was codified in section 1170.18. Section 1170.18, provides in relevant part: | (a) A person currently serving a sentence for a conviction, whetherbytrial or plea, of a felony or felonies who would have been guilty of a misdemeanor underthe act that added this section (“this act”) had this act been in effect at the time 10 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 . . . Section 490.2 ... of the Penal Code, as those sections have been amendedor added bythis act. If a defendantis eligible for reduction of his or her conviction under subdivision (a), then subdivision (b) requires thetrial court to determine whether the defendantposes “‘an unreasonable risk of danger to public safety,” andlists criteria for the trial court to consider in making that determination, none of which applied to appellant. Section 1170.18, subdivision (a), does not expressly refer to violation of Vehicle Code section 10851, subdivision (a). However, section 490.2, subdivision (a), provides, “Notwithstanding Section 487 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.. . .” Section 487, subdivision (d)(1) defines theft of an automobile as grand theft. Appellant’s violation of Vehicle Code section 10851, subdivision (a), was subject to reduction to a misdemeanor under section 1170.18 because (1) a violation of section 487 is subject to reduction to a misdemeanor whenthe value of the vehicle was less than $950; (2) a violation of Vehicle Code section 10851, subdivision (a) is a lesser included offense of section 487; and (3) the voters who enacted section 1170.18 must have intendedforit to apply to the enumerated offenses as well as their lesser included offenses. l. Section 1170.18 includes violations of section 487 by reference. Grandtheft is punishable as a misdemeanoror a felony. (§§ 489, _ I] subd. (c); 1170, subd. (h).) The clause in section 490.2, subdivision(a), “Notwithstanding Section 487 or any other provision of law defining grand theft .. .” reduces a violation of section 487 to a misdemeanor whenthe value of the vehicle taken is less than $950. Section 1170.18 thus applies to a violation of section 487 due to the express reference in section 490.2 to section 487. 2. A Violation of Vehicie Code section 106851, subdivision (a) is a lesser included offense to a violation of section 487. In People v. Kehoe (1949) 33 Cal.2d 711, this court recognizedthat unlawfully taking or driving an automobile is a lesser included offense of grandtheft, stating, “[I]n the absence of any evidence showing a substantial break between [the defendant’s] taking and his use of the automobilein that county, only the conviction for one offense may be sustained.” (Kehoe, supra, 33 Cal.2d at p. 715.) This court has not retreated from that proposition in the ensuing years. (See People v. Marshall (1957) 48 Cal.2d 394, 400 [unlawfully taking or driving a vehicleis lesser included offense of grandtheft of automobile]; People v. Vera (1997) 15 Cal.4th 269, 274 [tacitly recognizing same]; People v. Barrick (1982) 33 Cal.3d 115, 128; see also People v. Buss (1980) 102 Cal.App.3d 781, 784.) On a related issue, this court held that “fi]f the [Vehicle Code section 10851] conviction is for the taking of the vehicle, with the intent to permanently deprive the ownerofpossession, thenit is a theft conviction.” (People v. Garza (2005) 35 Cal.4th 866, 881, emphasis in original.) In this case, appellant pled guilty to a violation of Vehicle Code section 10851, subdivision (a) in which it was alleged appellant “did . unlawfully drive and take a certain vehicle,” on or about May 29, 2012. 12 (Clerk’s Transcript on Appeal, vol. 1 of 1, pp. 1, 5.) There was no evidence or information suggesting appellant was nor the person whotook the vehicle. Thus, appellant’s conviction for violating Vehicle Code section 10851, subdivision (a) was, for all intents and purposes, a conviction for vehicle theft. 3. Section 1170.18 applies to a violation of Vehicle Code section 10851, subdivision (a). As noted above, section 1170.18, subdivision (a) does notrefer to violations of Vehicle Code section 10851. However, it applies to violations of section 487 through the introductory clause in section 490.2, subdivision (a). If section 1170.18, subdivision (a), applies to violations of section 487, then logically it applies to a lesser included offense of section 487. The fundamental purposeof statutory construction is to ascertain the intent of the lawmakersso as to effectuate the purposeofthe law. (Horwich v. Superior Court (1999) 21 Cal.4th 272.) In the case of a provision adopted by the voters,“their intent governs.” (People v. Jones (1993) 5 Cal.4th 1142, 1146.) The rules of statutory construction that apply to legislation applies to interpreting a voterinitiative like Proposition 47. (People v. Rizo (2000) 22 Cal.4th 681, 685.) The ballot material for Proposition 47 promised enactmentoftheresulting statutes would, inter alia, stop wasting prison space on petty crimes and focus law enforcement resources on violent and serious crimes by changing low-level nonviolent crimes suchas simple drug possession andpetty theft from felonies to misdemeanors, saving hundreds of millions of taxpayer funds. (Ballot Pamp., Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 2, p. 70.) It is presumed the voters intended reasonable results consistent with 13 e p w y a t t its expressed purpose, not absurd consequences. (Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 235.) Applying section 1170.18 to a violation of Vehicle Code section 1085 l, subdivision (a) is consistent with the intent of the voters to not spend taxpayer moneyon incarcerating low-level offenders. If the voters deemed grand theft of an automobile to be a sufficiently low-ievel crimeto be eligible for reduction to a misdemeanor pursuantto section 1170.18, then the voters logically must have intended for felony vehicle theft in violation of Vehicle Code section 10851, subdivision (a) to be eligible for reduction to a misdemeanor. It would be illogical, indeed absurd, to allow a defendant who commits a greater offense -- grand theft of an automobile -- to benefit by having that crime eligible for reduction to a misdemeanor undersection 1170.18, but deny that benefit to a defendant who committed a less serious violation of the law. And statute should not be interpreted in a manner that leads to absurd results. (People v. Morris (1988) 46 Cal.3d 1, 15.) The doctrine of retroactivity under Jn re Estrada (1965) 63 Cal.2d 740 also suggests that section 1170.18 should apply to a violation of Vehicle Code section 10851, subdivision (a). Underthat doctrine, “when the Legislature amendsa statute so asto lessen the punishmentit has obviously expressly determinedthat its former penalty was too severe and that a lighter punishment is proper as punishmentfor the commission ofthe prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could 14 apply.” (/d. at p. 744.) The doctrine ofretroactivity is not technically applicable to the instant case because the voters did not amend Vehicle Code section 10851, subdivision (a). However, the punishmentfor a violation of Vehicle Code section 10851, subdivision (a) was indirectly amended by the voters because a conviction for grand theft of an automobile is eligible for reduction to a misdemeanorbyvirtue of the introductory clause in section 490.2, subdivision (a), and a violation of Vehicle Code section 10851, subdivision (a) is a lesser included offense of grand theft of an automobile. B. The Equal Protection Clause requires that appellant’s conviction for unlawfully taking a vehicle be treated in the same manneras a conviction for auto theft under section 487, subdivision (d)(1). Disparate treatment of similarly situated defendants, which infringes a fundamentalright to liberty and implicates a suspect classification, violates the equal protection guarantees of the Fourteenth Amendmentto the United States Constitution andarticle I, section 7 of the California Constitution. Under Proposition 47, the protections and relief of sections 490.2 and 1170.18 are afforded those who were convicted ofstealing a motor vehicle valued at $950 or less because section 487, subdivision (d)(1) specifically is listed in the provisions of Proposition 47. The Equal Protection Clause requires those sameprotections andrelief be afforded a defendant convicted of unlawfully taking a motor vehicle under Vehicle Code section 10851, subdivision (a). 1. The twoclasses of thieves are similarly situated. “The concept of equal protection recognizes that persons who are 15 similarly situated with respect to a law’s legitimate purpose mustbe treated equally.” (People v. Brown (2012) 54 Cal.4th 314, 328.) “Thefirst prerequisite to a meritorious claim under the equal protection clauseis a showingthat the state has adopted classification that affects two or more similarly situated groups in an unequal manner.’ [Citations.]” (People v. Hofsheier (2006) 37 Cal.4th 1185, 1199, overruled on another eround in Johnson v. DepartmentofJustice (2015) 60 Cai.4th 871, 875; see also Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.) In measuring this requirement, a court must ask whetherthe twoclasses in question are similarly situated with respect to the purpose of the law challenged. (People v. Hofsheier, supra, 37 Cal.4th at pp. 1199-1200, citing Cooley v. Superior Court, supra, 29 Cal.4th at p. 253.) The legitimate purposes of sections 490.2 and 1170.18 are saving moneyby reducing the costs of incarcerating minor criminals and promoting public health and safety. This is accomplished by diverting resources to higher risk crimes (felonies) and revoking the discretionary power of the District Attorney’s Office to charge low-level thefts and drug possession crimes as felonies instead of misdemeanors. Thereallocation of criminal justice resources also depends upon reduction ofpast and present felony charges to misdemeanorson a fair and level basis. One who simply takes a vehicle is similarly situated to a thief who steals the samevehicle. 2. The law should not discriminate against a lesser offender. There is no plausible justification to withhold from appellant the same clemencygranted a comparable thief. Even wherea rational basis may exist for treating two classes of defendants differently, if the law 16 discriminates against the less dangerousclass the law nevertheless will fail the rational basis test. (Newland v. Board ofGovernors (1977) 19 Cal.3d 705, 711 [providing relief to felons while withholding samerelief from misdemeanants wasirrational].) Even assuming arguendothe unlawful taking of a motor vehicle under Vehicle Code section 10851 intentionally was omitted from the provisions of Proposition 47 while grand theft auto under section 487 wasincluded, the punitiverelief afforded the latter must be afforded to an otherwise qualified defendant convictedofviolating Vehicle Code section 1085 1, subdivision (a). 3. Standardof review for disparate treatment. “Distinctions in statutes that involve suspectclassifications or touch upon fundamentalinterests are subject to strict scrutiny, and can be sustained only if they are necessary to achieve a compelling state interest .... But mostlegislation is tested only to determineif the challenged classification bears a rational relationship to a legitimate state purpose.” (People v. Hofsheier, supra, 37 Cal.4th at p. 1200, citing Romer v. Evans (1996) 517 U.S. 620, 635; Kasler v. Lockyer (2000) 23 Cal.4th 472, 481- 482; Warden v. State Bar (1999) 21 Cal.4th 628, 641.) Thestrict scrutiny standard should apply here because excluding appellant from the potential relief afforded by Proposition 47 infringes upon a fundamental right. The fundamental interest in this case, uniformity in the sentences of offenders committing the same offenses undersimilar circumstances, encompassestheright to liberty. Personal liberty is a fundamental interest and, as such, any equalprotection challenge to a law infringing on this interest must be judged underthestrict scrutiny standard. (People v. Olivas 17 (1976) 17 Cal.3d 236, 250-251; see also People v. Austin (1981) 30 Cal.3d 155, 166 [strict scrutiny applies to challenge regarding credits]; Peoplev. Williams (1983) 140 Cal.App.3d 445, 450 [criminal enhancementinvolves the deprivation of a fundamentalliberty interest and, therefore, the state must demonstrate a compelling interest for any disparity in the treatment of defendants similarly situated].) In People v. Olivas, supra, this court held it was an equal protection violation to allow a misdemeanantyouth to be confined for a term longer than the maximum sentence which might have been imposed on anadult. (Id., 17 Cal.3d at pp. 239-242.) The court reasoned that because | incarceration was a deprivation ofliberty, the classification-by-age scheme affected the defendant’s personal liberty interests, which the court concluded wasa “fundamental”interest deserving of strict scrutiny. (/d. at pp. 245-251.) The disparate treatment causedby literal reading of Proposition 47, much as the different sentencing statutes at issue in Olivas, impinges upon a fundamental liberty interest: whether one is punished for a misdemeanorora felony. First, the distinction between the twostatutes proscribing the unlawful taking of a vehicle determines whether one must serve up to one year in county jail or up to a three years in state prison for stealinga car. Further, the difference between the two sections also determines whether the convicted defendantsuffers the stigma and loss of constitutionalrights only associated with a felony conviction. “The degree of criminal culpability the legislature choosesto associate with particular, factually distinct conduct has significant implications both for a defendant’s very 18 liberty, and for the heightened stigma associated with an offense the legislature has selected as worthy of greater punishment.” (Apprendi v. New Jersey (2000) 530 U.S. 466, 495.) The denial of actual freedom, coupled with the loss ofsignificant constitutionalrights resulting from a conviction’s classification as a felony in lieu of a misdemeanor, demands that any law creating such disparate treatment be subjectto strict scrutiny. (People v. Olivas, supra, 17 Cal.3d at p. 251.) “[O]nce it is determinedthat the classification schemeaffects a fundamentalinterest or right the burden shifts; thereafter the state must first establish that it has a compelling interest which justifies the law and then demonstrate that the distinctions drawn by the law are necessary to further that purpose.” (People v. Olivas, supra, 17 Cal.3d at p. 251; see also Wygant v. Jackson Board ofEducation (1986) 476 U.S. 267, 274 [the law must be “supported by a compelling state purpose and whether the means chosen to accomplish that purpose are narrowly tailored.”]; People v. Cole (2007) 152 Cal.App.4th 230, 237-238.) Unless the state can assert any compelling interest which constitutionally justifies the disparate treatment between these twotypes of thieves, or can show the law accomplishes that goal in the least restrictive means possible, the mandates ofthe Equal Protection Clause require this court to treat the two the same. 4. Thereis no rational basis for disparate treatment. Even were the court to ignore the disparate impact on liberty and assume this legislation is subject to mere rational basis scrutiny, the instant unequal treatmentstill fails to pass constitutional muster. There simply is_ no rational basis for the disparate treatment of two substantially identical 19 car thieves, one who unequivocally stole the car and the other for whomitis not clear whether he stole or merely borrowed the car without permission. (See People v. Hofsheier, supra, 37 Cal.4th at pp. 1200-1201.) Any proffered basis for the distinction at issue mustserve a “vealistically conceivable legislative purpose[], rather than [a] fictitious purpose[] that could not have been within the contemplationofthe Legislature.” (Warden v. State Bar, supra, 21 Cal.4th at pp. 648-649 [emphasis in original, internal quotations and citations omitted].) Here, there is no rationalbasis to discriminate in favor of vehicle thieves and against those who merely may have borrowed the vehicle without permission. As such, even underthe moredeferential standard ofscrutiny, the unequal treatment of these twotypes ofthieves violates the equal protection clauses ofboth the state and federal Constitutions. 20 CONCLUSION For the reasons stated above, appellant respectfully requests that this court grant review in this matter. Dated: November 20, 2015 \ ikaie J Y S. KROSS t No. 142882 Attomey for Appellant TIMOTHY WAYNE PAGE WORD COUNT CERTIFICATION Pursuant to Rule 8.504(d)(1), California Rules of Court, I hereby certify, under penalty of perjury, that according to the word-count function of my computer’s word processing program,this petition for review contains 4,208 words. Executed this 20th day ofNovember 2015 at Sebastopol, California. Q. ait JEFFREYS, KROSS 21 Filed 10/23/15, reposted to delete transcript references CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, E062760 v. | (Super.Ct.No. FV11201369) TIMOTHY WAYNEPAGE, | OPINION Defendant and Appellant. APPEALfrom the Superior Court of San Bernardino County. Lorenzo R. Balderrama and Michael A. Smith, Judges.! Affirmed. Jeffrey S. Kross, under appointmentby the Court of Appeal, for Defendant and Appellant. — | Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, and Arlene A. Sevidal and Christen Somerville, Deputy Attorneys General, for Plaintiff and Respondent. 1 Judge Balderrama conducted defendant’s plea hearing on June 8, 2012; Judge Smith heard defendant’s resentencing petition on December 26, 2014. Defendant Timothy WaynePagepleaded guilty to several charges, including one count of unlawfully taking a vehicle in violation of Vehicle Code section 10851, subdivision (a). Subsequently, California voters enacted Proposition 47, the Safe Neighborhoods and Schools Act, which amongotherthings established a procedurefor specified classes of offendersto have their felony convictions reduced to misdemeanors and be resentenced accordingly. (Pen. Code, § 1170.18.) In this appeal, defendant challenges the denial of his petition for resentencing pursuant to Proposition 47 with respect to his Vehicle Code section 10851 conviction. He contendsthat the trial court erred by determining that he wasnoteligible for relief. We affirm. I. FACTS AND PROCEDURAL BACKGROUND On June 8, 2012, defendant pleaded guilty to three counts, including the unlawful taking of a vehicle (Veh. Code, § 10851, subd.(a)), evading an officer with willful disregard for safety (Veh. Code, § 2800.2, subd.(a)), and resisting an executive officer (Pen. Code, § 69)). He also admitted one prior strike conviction and twoprison priors. Pursuantto the plea agreement, he received a sentence of 10 years eight months. On November19, 2014, defendantfiled in propria persona a petition for resentencing pursuant to Proposition 47. The trial court summarily denied the request on December26, 2014. II. DISCUSSION A. Background Regarding Proposition 47. On November4, 2014, voters enacted Proposition 47, and it wentinto effect the next day. (Cal. Const., art. II, § 10, subd. (a).) “Proposition 47 makescertain drug- and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. These offenses had previously been designatedas either felonies or wobblers(crimes that can be punished aseither felonies or misdemeanors).” (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) “Proposition 47 also created a new resentencingprovision: [Penal Code] 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, maypetition 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.) Asrelevantto the present case, Proposition 47 added Penal Codesection 490.2, whichprovides as follows: “Notwithstanding [Penal Code] Section 487 oranyother 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).) Section 490.2 is explicitly listed in Penal Codesection 1170.18 as oneof “those sections [that] have been amended or added” by Proposition 47. (Pen. Code, § 1170.18, subd.(a).) B. Analysis. | Penal Codesection 1170.18 does not identify Vehicle Code section 10851, the offense at issue in the present appeal, as one of the code sections amendedor added by Proposition 47. (Pen. Code, § 1170.18.) Vehicle Code section 10851 is, however, a lesser included offense to Penal Code section 487, subdivision (d)(1), grand theft, auto. (People v. Barrick (1982) 33 Cal.3d 115, 128.) Defendant argues that Penal Code section 1170.18 explicitly applies to violations of Penal Code section 487, through the introductory clause of Penal Code section 490.2, so “logically”it must apply to lesser included offenses of Penal Code section 487, including Vehicle Codesection 10851. We disagree. As noted, Penal Codesection 1170.18 provides a mechanism for a person “who would have been guilty of a misdemeanor,”if Proposition 47 had beenin effect at the timeofthe offense, to petition for resentencing in accordance with certain enumerated sections that were amendedor added by Proposition 47. (Pen. Code, § 1170.18, subd. (a).) We cannotsay that defendant would have been guilty of a misdemeanor had Proposition 47 beenin effect at the time of his offense. Vehicle Code section 10851 is a “wobbler” offense, punishable either as a felony or misdemeanor. (Veh. Code, § 10851, subd. (a); see People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 974,fn. 4 [listing Veh. Code § 10851, subd.(a) as a statute that provides for “alternative felony or misdemeanor punishment”].) Proposition 47left intact the language in Vehicle Code section 10851, subdivision (a), which makesa violation of that statute punishable as either a felony or a misdemeanor. Based onthe statutory language alone,therefore, whether before or after Proposition 47, defendant could be convicted for a felony violation of Vehicle Code section 10851. In arguing otherwise, defendant focuses on the circumstance that, with Proposition 47’s addition of Penal Codesection 490.2, the theft of an automobile valued $950 orless is no longer grandtheft, but instead petty theft, unless the offense was committed by certain ineligible defendants. (Pen. Code, §§ 490.2, subd. (a), 487, subd. (d)(1).) Thus, a defendant who could demonstrate that his or her conviction for a violation of section 487, subdivision (d)(1), was based on theft of an automobile valued $950 or less may be eligible to apply for relief under Proposition 47 and Penal Code section 1170.18. (Pen. Code, § 1170.18, subd. (a).) The gravamenof defendant’s arguments on appealis that a defendant convicted of a lesser included offense of section 487 should be entitled to similarrelief. The plain language of Penal Code section 1170.18, however, is incompatible with defendant’s proposedinterpretation. Penal Code section 1170.18, subdivision (a) provides a mechanism for an offender to request to be resentenced “in accordance with” certain enumerated sections that were amended or added by Proposition 47, and which provide for different, lesser punishment than applied before the enactment of Proposition | 47. (Pen. Code, § 1170.18, subd. (a).) As noted, the statutory languagesetting the punishmentfor violations of Vehicle Code section 10851 remains the same, before and after Proposition 47, and is not included among the enumerated sections amendedor added by Proposition 47. (Veh. Code, § 10851, subd. (a); see Pen. Code, § 1170.18, subd. (a).) Defendant therefore could not be resentencedin accordance with any ofthe sections added or explicitly amended by Proposition 47. Put another way: Exactly the same sentencing considerations apply to defendant’s conviction offense before and after Proposition 47, so there is no basis for reconsidering or reducing the sentence that was initially imposed. Defendant contends that Vehicle Code section 10851 was “indirectly amended” by virtue of Penal Code section 490.2’s reference to Penal Codesection 487, and the circumstance that Vehicle Code section 10851 is a lesser included offense of Penal Code section 487, subdivision (d)(1). On its face, however, Penal Code section 490.2 does no more than amendthe definition of grandtheft, as articulated in Penal Code section 487 or any other provision of law, redefining a limited subset of offenses that would formerly have beengrand theft to be petty theft. (Pen. Code, § 490.2.) Vehicle Code section 10851 does not proscribe theft of either the grandorpetty variety, but rather the taking or driving of a vehicle “with or without intent to steal.” (Veh. Code, § 10851, subd.(a); see also People v. Garza (2005) 35 Cal.4th 866, 876 [Veh. Code, § 10851, subd.(a) “‘proscribes a wide range of conduct,”” and maybeviolated “‘either by taking a vehicle with the intentto steal it or by driving it with the intent only to temporarily depriveits ownerof possession(i.e., joyriding)’”].) Penal Code section 490.2 is simply inapplicable to defendant’s conviction offense.” Defendant contends that equal protection principles require that his conviction for unlawfully taking a vehicle in violation of Vehicle Code section 10851 be treated in the same manner as a conviction for grand theft auto in violation of Penal Codesection 487, subdivision (d)(1). Not so. Applyingrationalbasis scrutiny, the California Supreme Court has held that “neither the existence of two identical criminal statutes prescribing different levels of punishments, nor the exercise of a prosecutor’s discretion in charging under onesuchstatute andnotthe other, violates equal protection principles.” (People v. Wilkinson (2004) 33 Cal.4th 821, 838) Similarly, it has long beenthe case that “a car thief may not complain because he may have been subjected to imprisonment for more than 10 years for grand theft of an automobile [citations] when, under the same facts, he might have been subjected to no more than 5 years underthe provisions of section 10851 of the Vehicle Code.” (People v. Romo (1975) 14 Cal3d 189, 197.) The same reasoning applies to Proposition 47’s provision for the possibility of sentence reduction for a 2 Even if we were to assumethat Penal Codesection 490.2 applied as defendant would have it—to reduce some Vehicle Codesection 10851 convictions that would otherwise be felonies to misdemeanors,at least where the facts underlying the conviction involve theft (as opposed to merely joyriding) of a vehicle valued $950 or less—it does not appear that defendant would be entitled to relief. Defendant’s guilty plea shows only that he unlawfully took or drove a vehicle; nothing in the record establishes the value of the vehicle to be $950 or less. The burden ofproof lies with defendant to show the facts demonstrating his eligibility for relief, including that the value of the stolen vehicle did not exceed $950. (People v. Sherow (2015) 239 Cal.App.4th 875, 877.) Defendant did not attempt to meetthat burden in his petition, providing no informationatall regarding his eligibility for resentencingin his petition. limited subset of those previously convicted of grand theft (those whostole an automobile or other personal property valued $950 or less), but not those convicted of unlawfully taking or driving a vehicle in violation of Vehicle Code section 10851. Absent a showingthat a particular defendant “‘has been singled out deliberately for prosecution onthe basis of someinvidiouscriterion,’ . . . the defendant cannot make out an equal protection violation.” (Wilkinson, supra, 33 Cal.4th at p. 839.) Defendant here has made no such showing. To be sure, “Vehicle Code section 10851 is not classified as a ‘serious felony,’ and it is not as serious as crimes in which violenceis inflicted or threatened against a person.” (People v. Gaston (1999) 74 Cal.App.4th 310, 321.) It is not unreasonableto argue, as defendanthas, that the same policy reasons motivating Proposition 47’s reduction in punishmentfor certain felony or wobbler offenses would also apply equally well to Vehicle Code section 10851.3 Nevertheless, if Proposition 47 were intendedto apply not | only to reduce the punishmentfor certain specified offenses, but also any lesser included offenses, we would expect someindication of that intent in the statutory language. We find nothing of the sort. It is simply not our role to interpose additional changesto the 3 That said, we find nothing absurdorirrational aboutthe legislative determination that theft of certain automobiles of very low value shouldbe treated as petty theft, and thus potentially a misdemeanor, while retaining the statutory option of punishing the unlawful taking or driving of an automobile, regardless of intentto steal, as a felony violation of Vehicle Code section 10851. (See Wilkinson, supra, 33 Cal.4th at pp. 838-839 [finding rational basis for statutory scheme allowing the “‘lesser’” offense of battery without injury to be punished more severely than the “‘greater’” offense of battery with injury].) Penal Code or Vehicle Code beyond those expressedin the plain language ofthe additions or amendments resulting from the adoption of Proposition 47. III. DISPOSITION The order appealed from is affirmed. CERTIFIED FOR PUBLICATION HOLLENHORST Acting P.J. Weconcur: MCKINSTER J. KING J. PROOFOF SERVICE BY MAIL AND E-SERVICE I declare under penalty of perjury that I am a citizen of the United States, over the age of eighteen years, an active memberofthe State Bar of California, and nota party to the within action. My business addressis P.O. Box 2252, Sebastopol, California 95473-2252. On this date I served the attached PETITION FOR REVIEWbyplacing true copies thereofin a sealed envelope which I deposited in the United States mail at Sebastopol, California with the postage thereon fully prepaid, addressed as follows: Office of the Clerk : San Bernardino County Superior Court 247 W. Third Street San Bernardino, CA 92415 Office of the District Attorney Appellate Services Division 412 W. Hospitality Lane, 1st Floor San Bernardino, CA 92415-0042 Timothy Wayne Page AL7644 Sierra Conservation Center 5150 O’Byrnes Ferry Road Jamestown, CA 95327 I further declare that I electronically served from myelectronic service address ofjeffskross@earthlinknet the same above referenced documentonthis date to the followingentities: Office of the Attorney General at ADIEService@doj.ca.gov; Appellate Defenders,Inc.at eservice-criminal@adi-sandiego.com; and the Court ofAppeal, Fourth Appellate District, Division Two via e-submission throughits official website. Executed this 23rd day ofNovember 2015 at Sebastopol, California. _ 2 _ AGMe JE S. KROSS
