1

Filed 9/15/16 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. JAMES RUBIN VARNER, Defendant and Appellant. E063389 (Super.Ct.No . FVI1402682)

OPINION

APPEAL from the Superior Court of San Bernardino County. Miriam Ivy Morton, Affirmed. Paul J. Katz, 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, Charles C. Ragland and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.

On November 4 , 2014 , t he voters approved Proposition 47, The Safe Neighborhood s and Schools Act ( Proposition 47 )

. Proposition 47 reduced certain2

nonserious, nonviolent felonies to misdemeanor s . Proposition 47 a llows a person convicted of a felony prior to its passage, who would have been guilty of a misdemeanor under Proposition 4 7, to petition the court to reduce his or her felony to a misdemeanor

and be resentenced

. On July 28, 2 0 1 4 , p rior to the passage of Proposition 47, defendant and appellant

James Rubin Varner entered a guilty plea to a felony violation of receiving stole n property, specifically a 1986 Yam aha M300 motorcycle , within the meaning of Penal Code section 496d, subdivision (a). 1 Defendant filed a petition to recall his sentence (Petition) stating that his felony conviction should be reduced to a misdemeanor. T he

trial court denied his P etition on the grounds that his conviction was not eligible for resentencing under Proposition 47.

Defendant now claims on appeal the trial court erred by finding a violation of section 496d does not qualify for resentencing u nder Proposition 47 because (1) Proposition 47 redefines all theft

- related offenses with the value of the property under $950 as misdemeanors ; and (2) if this court finds section 496d was not affected by Proposition 47, the omission from Proposition 47 vio lated his equal protection rights

under the state and federal Constitutions

. A conviction for receiving a stolen motor vehicle in violation of section 496d is not an eligible offense u nder Proposition 47. Defendant also has not shown an equal protection violation. We affirm the denial of the P etition.

1 All further statutory references are to the Penal Code unless otherwise indicated.3 FACTUAL AND PROCEDURAL HISTORY On July 18, 2014, defendant was charged in a felony complaint in San Bernardino County case No. FVI1402682 with one count of receiving a stolen motor vehicle within

the meani ng of s ection 496d, subdivision (a). Specifically, he was charged with

unlawf ully buying or receiving a “ 19 86 Yam [aha] M300

. ” In addition, he was charged with having served three prior prison terms within the meaning of section 667.5, subdivision (b).

O n July 28, 2014 , defendant signed a plea agreement agreeing to enter a guilty plea to a violation of section 496 d , subdivision (a), recei ving stolen property, a vehicle. In addition, he admitted having suffered one prior prison term. The trial court acce pted the plea. Defendant was sentenced to three years felony probation and was ordered to serve the first 180 days in county jail. Defendant violated his probation and his sentence was modified on February 3, 2015. He received a sentence of 365 days in county jail.

On March 12 , 2015 , defendant filed his Pet ition. It consisted of one page. The

sole information on his conviction that was provided to the trial court in the Petition was as follows: “Defendant in the above

- entitled case requests that, p ursuant to Penal Code section 1170.18, the following felony violation(s) PC496 D be designated as

m isdemeanor(s )

. ” He stated that he was in custody. The People filed a written response that section 496d was not included in Proposition 47. The matter was set for a hearing.

On April 17 , 2015, the t rial court heard the Petition. Defendant’s counsel argued

t hat section 496d was included in Proposition 47 and that the motorcycle , which defendant was in possession of , was valued at less than $950. Defendan t’s counsel stated4

he had one of his investigators check into the value of the motorcycle. According to the National Auto Dealers Association, the value, if in good condition, was $765. The People responded that section 496d was not listed in Proposition 47. The trial court

denied the Petition.

DISCUSSION Defendant contends the trial court erred in denying his petition because the voters intended to include section 496d under Proposition 47. Specifically, he claims that section 496d, although no t liste d in Proposition 47, was intended to be included under the

catch

- all provision of section 490.2. Defendant also contends that if this court concludes section 496d was not intended to be included in Proposition 47, h is equal protection rights under the sta te and federal Constitutions have been violated. These issues are currently under review before the California Supreme Court in People v. Nichols (2016) 244 Cal.App.4th 681 ( rev iew granted Apr. 20, 2016, S233055 ) ; People v. Peacock (2015) 242 Cal.App.4th 708 ( rev iew granted Feb. 17, 2016, S230948 ) ; and People v. Garness (2015) 241 Cal.App.4th 1370 ( rev iew granted Jan. 27, 2016, S231031.) 2

2 Both parties cite to these opinions in their briefs and rely on them. California Rules of Court, rule 8.1115(e)(1) was amended effective July 1, 2016 , to provide as follows: “Pending review and filing of the Supreme Court’s opinion, unless otherwise ordered by the Supreme Court under (3), a published opinion of a Court of Appeal in the matter has no binding or precedential effect, and may be cited for potentially persuasive value only. Any citation to the Court of Appeal opinion must also note the g rant of review and any subsequent action by the Supreme Court.” However, this only applies to cases published after July 1, 2016.5

A. PROPOSITION 47 “The voters approved Proposition 47 at the November 4, 2014 general election,

and it became effect ive the next day.” ( People v. Diaz. (2015) 238 Cal.App.4th 1323, 1328.) “Proposition 47 ‘was intended to reduce penalties for “ certain nonserious and nonviolent property and drug offenses from wobblers or felonies to misdemeanors.”

Those crimes were iden tified as “Grand Theft,” “Shoplifting,” “Receiving Stolen Property,” “Writing Bad Checks,” “Check Forgery,” and “Drug Possession.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) analysis by the Legis. Analyst [.] )’” ( T.W. v. Superior Court (2015) 236 Cal.App.4th 646, 652 , italics added .)

S ection 1170.18, subdivision (a) provides in pertinent part, “A person currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor un der 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

. . . . ” Proposition 47 amended section 496, buying or receiving stolen property, to provide that if the defendant receives “any property” tha t is $950 or less, the offense shall

be a misdemeanor except for some ineligible individuals

. (§ 496, subd. (a).) The previous 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 so charging would be in the interests of justic e. ( Former § 496 [eff. Oct. 1, 2011

– Nov. 4, 2014].) Accordingly, Proposition 47 converted the6

offense of receiving stolen property in section 496 from a wobbler to a misdemeanor. Proposition 47 did not amend section 496d, the section under which defend ant 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 conceal s, sells,

withholds , or aids in concealing, ” shall be convicted of either a misdemeanor or felony.

B. ELIGIBILITY As stated, s ection 496d is n ot listed in Proposition 47. In order to be eligible for resentencing, defendant had the burden of showing that he “would have been guilty of a misdemeanor” if Proposition 47 had been in effect at the time of his offense. (See People

v. Sherow (2015) 239 Cal.App.4th 875, 879

- 880 [defendant has the burden of establishing his or her eligibility for resentencing unde r Proposition 47 ] .) “When we interpret an initiative, we apply the same principles governing statutory construction. We first consider the initiative’s language, giving the words their ordinary meaning and construing this language in the context of the s tatute and initiative as a whole. If the language is not ambiguous, we presume the voters intended the meaning apparent from that language, and we may not add to the statute or rewrite it to conform to some assumed intent not apparent from that language. If the language is ambiguous, courts may consider ballot summaries and arguments in determining the voters’ intent and understanding of a ballot meas ure. ” ( People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 571 ( Pearson ) .)7

Defendant stated in his P etition only that he had been convicted of “ PC496 D .” The trial court determined that defendant was not eligible for resentencing. The trial

court did not err because section 496d is not included in section 1170.18. Moreover,

there is no indication tha t the drafters of Proposition 47 intended to include section 496d. Construing the plain language of section 1170.18 to include section 496d would be inconsistent with our Supreme Court’s determination that we may not “add to the statute

or rewrite it to c onform to some assumed intent not apparent from that language.” ( Pearson , supra , 48 Cal.4th at p. 571.)

D efendant’s reliance on the changes made by Proposition 47 to the crimes of grand theft and petty theft do not support that the drafters of Propositio n 47 intended to include section 496d. S ection 490.2, which was added by Proposition 47, provides a definition of petty theft that affects the definition of grand theft in section 487 and other provisions. Section 490.2 begins with the phrase: “Notwiths tanding Section 487 or any other provision of law defining grand theft

. . . .” (§ 490.2) Similarly, section 459.5, which was also added by Proposition 47 , and which provides a definition of shoplifting that affects the definition of burglary in section 459, begins with the phrase: “Notwithstanding Section 459.

. . .” (§ 459.5.) T he drafters of Proposition 47 knew how to indicate when they intended to affect the punishment for an offense the proposition was not directly amending. This “notwithstanding ” language is conspicuously absent from section 496, subdivision (a). Because that provision contains no reference to section 496d, we must assume the drafters intended section 496d to remain intact and intended for the prosecution to retain its discretio n to charge section 496d offenses as8

felonies. Additionally, Proposition 47 modified both section 496, receiving stolen property, and added section 490.2. If section 490.2 applied to receiving stolen property offenses, there would be no need to amend sec tion 496. The trial court did not err by concluding defendant was ineligible for resentencing based on his conviction of section

496d.

C. EQUAL PROTECTION

Defendant contend s if his conviction of a felony for receiving a stolen vehicle

valued at less tha n $950 3 does not qualify under Proposition 47, his equal protection rights were violated. Specifically, he contends that he is similarly situated to a person who received a stolen vehicle valued under $950 and was convicted under section 496,

subdivision (a) prior to the passage of Proposition 47. He insists that person can seek resentencing under Proposition 47. However, since he was convicted of violating section 496d prior to the passage of Proposition 47, for the same conduct of receiving a stolen

ve hicle under the value of $950, he cannot seek resentencing. While he recognizes that it is not an equal protection violation to have overlapping criminal laws with different punishments , because the prosecutor has discretion to choose between these punish ments , such reasoning only applies on a prospective basis not on a retrospective basis. Here, the prosecutor did not exercise such discretion in choosing to convict him under section 496d prior to the passage of Proposition 47.

3 Defendant presented evidence in the trial court t hat t he motorcycle taken was valued at $765

. For purposes of this arg ument, we will assume the value of the motorcycle was less than $950.9

“‘ The United States and Ca lifornia Constitutions entitle all persons to equal protection of the laws. [Citations.] This guarantee means “that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons

or other classes in like c ircumstances.” [Citation.] A litigant challenging a statute on equal protection grounds bears the threshold burden of showing “that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.” [Citatio n.] Even if the challenger can show that the classification differently

affects similarly situated groups, “[i]n ordinary equal protection cases not involving suspect classifications or the alleged infringement of a fundamental interest,” the

classificati on is upheld unless it bears no rational relationship to a legitimate state

pur pose.’ ” ( People v. Singh (2011) 198 Cal.App.4th 364, 369.) The California Supreme Court in People v. Wilkinson (2004) 33 Cal.4th 821, 838 , stated that “[a] defendant . . . ‘ does not have a fundamental interest in a specific term of imprisonment or in the designatio n a particular crime receives.’ ” Accordingly, the rational basis test is applicable to an equal protection challenge involving an alleged sentencing disparity. ( I

bid. ) It additionally found, “neither the existence of two identical criminal statutes prescribing different levels of punishment s , nor the exercise of a prosecutor’s discretion in charging under one such statute and not the other , violates equal protecti on principles.” ( I bi d .) 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 denie d only where there is no “rational relationship between the disparity of treatment and some10

legitimate governmental purpose.” ’ ” ( Johnson v. Department of Justice (2015) 60

Cal.4th 871, 881.) It also stated, “ To mount a successful rational basis challenge , a party must ‘“ negat [ e ] every conceivable basis”’ that might support the disputed statutory disparity .” ( I

bid .) “If a plausible basis exists for the disparity, courts may not second

guess its ‘“ wisdom, fairness, or logic.”’ ” ( I bid .)

D efendant’s cl aim is based on his insistence that prior to Proposition 47, a prosecutor, faced with a defendant in receipt of a stolen vehicle valued under $950 , could choose to charge a defendant under section 496, subdivision (a) or section 496d. As indicated, ante , f

ormer section 496, subdivision (a) was a wobbler offense but additionally provided, “if the district attorney or the grand jury determines that this action would be in the interests of justice, the district attorney or the grand jury, as the case may be, may, if the value of the property d oes not exceed nine hundred fifty dollars ($950), specify in the accusatory pleading that the offense shall be a misdemeanor, punishable only by imprisonment in a county jail no t exceeding one year.” (Former § 496, subd. (a).) Section 496 has remained the same penalizing the receipt of a stolen vehicle, no matter what the value, as a wobbler offense

. Defendant contends that after Proposition 47 , a prosecutor certainly has the

discretion to prosecute under either secti on 496, subdivision (a) , for a vehicle valued under $950 , or section 496d. He argues that since he was prosecuted prior to the passage of Proposition 47, the prosecutor did not exercise his or her discretion to punish him under section 496d instead. He i nsists the disparate retrospective treatment makes People

v. Wilkinson , supra , inapplicable. However, prior to the passage of Proposition 47, and11

after, section 666.5, subdivision (a) provides that a recidivist violator of certain statutes involving a mot or vehicle, which includes section 496d, but not a misdemeanor violation of section 496, subdivision (a), was subject to enhanced penalties. Defendant’s plea to a violation of section 496d prior to the passage of Proposition 47 subjected him to possible

a dditional punishment that a plea to receiving stolen property would not have done. The prosecutor’s decision to proceed under section 496d was not without discretion considering the differences between the two sections prior to Proposition 47.

Additio nally, i n People v. Johnston (2016) 247 Cal.App.4th 252 ( r eview granted July 13, 2016, S235041 ) the defendant argued that Vehicle Code section 10851 should be found to be part of Proposition 47 even though it is not listed in the P roposition , and that

it w ould be illogical for the electorate to punish petty theft of a $950 vehicle as a misdemeanor but punish the unlawful taking or driving of a $950 vehicle as a wobbler. The appellate court found the text of Penal Code section 1170.18 did not include Vehicl e Code section 10851. It concluded that the plain language of Penal Code section 1170.18 included only a few provisions from a multitude of overlapping crimes. ( Johnson , at pp. 257

- 258.) The defendant additionally argued that if Vehicle Code section 108 51 was not included, the “dichotomy in punishment” results in a violation of equal protection principles. The court rejected the claim finding, ““[N]either the existence of two identical criminal statutes prescribing different levels of punishments, nor t he exercise of a prosecutor’s discretion in charging under one statute and not the other, violates equal protection principles.’ [Citation.] Specifically, the disparity between the former punishment for ‘grand theft auto’ and unlawful taking or driving i s not a basis for finding12

a violation. [Citation.] Even if we assume the two categories of crimes are situated similarly, there is a rational basis for the distinction in treatment: The electorate was not obligated to extend relief under the initiative to all similar conduct. It could instead move in an incremental way, gauging the effects of this sea change in penal law. Particularly given the insignificant numbers of vehicle thefts at issue in light of the present vehicle prices, the electorate could conclude this would not work an injustice. Finally, the electorate could expect a prosecutor to exercise discretion to charge an unlawful taking or driving of a $950 vehicle as a misdemeanor. ” ( Id. at pp. 258

- 259.)

In People v. Acosta (2015) 242 Cal.Ap p.4th 521, the court rejected that defendant’s car burglary conviction should be subject to reduction to a misdemeanor

under Pro position 47. The defendant argued that in finding him ineligible, his equal protection rights were violated because a defendant convicted of grand theft of an automobile would be eligible for reduction of his offense under section 490.2. ( Acosta , at pp. 5 27.) The appellate court first found, “‘ At bottom, the Legislature is afforded considerable latitude in defining and setting t he consequences of criminal offense s . ’ ” ( Ibid .) It concluded, “ We have no difficulty concluding that the electorate could rationally extend misdemeanor punishment to some nonviolent offenses but not to others, as a means of testing whether Proposition 47 has a positive or negative impact on the criminal justice system. ‘Nothing compels the state “to choose between attacking every aspect of a problem or not attacking the problem at all

. ” [Citation.] Far from having “to solve all related ills at once” [c itation] the Legislature has “broad discretion” to proceed13

in an incremental and uneven manner without necessarily engaging in arb i tra r y and unlawful discrimination.’ ” ( Id. at pp. 527

- 528.) While the California Supreme Court w ill ultimately decide the is sue , it is

reasonable to conclude here that there is no equal protection violation. A fter the passage of Proposition 47, while it is true a defendant convicted of receiving a stolen vehicle under section 496d cannot obtain relief after Proposition 47 , whi le the same person prosecuted under section 496, subdivision (a) can obtain relief, such disparity does not

constitute an equal protection violation. The electorate could consider that only an insignificant number of persons would be prosecuted under sect ion 496d for a vehicle valued under $950. Most would be prosecuted under section 496, subdivision (a) if the “interests of justice” warranted conviction under that section. Moreover, the electorate could reasonably choose to include section 496, subdivis ion (a) violations but exclude, for now, violations of section 496d. Based on the foregoing, defendant has failed to show that the exclusion of section 49 6d from Proposition 47 violated his equal protection rights

. 4

4 Defendant also contends in his opening brief that if this court found that section 496d was included in Proposition 47, remand for an evidentiary hearing on the value of the stolen m otorcycle involved is required and that the People have the burden of proving the value of the motorcycle was over $950. However, w e have concluded that defendant’ s section 496d conviction is not eligible for reclassification and resentencing under sectio n 1170.18 in this case even if the actual value of the stolen motor vehicle was $950 or less.14 DISPOSITION The trial court’s order denying defendant’s petition to recall his sentence is

affirmed.

CERTIFIED FOR PUBLICATION

MILLER J.

We concur:

HOLLENHORST Acting P. J.

CODRINGTON J.