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Filed 2/10/21 P. v. Langston CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

WALTER LANGSTON,

Defendant and Appellant.

C089846

(Super. Ct. No. 07F09116)

This appeal is from a postjudgment order denying the application of defendant 

Walter Langston to designate as misdemeanors his convictions for violating Vehicle 

Code section 10851, subdivision (a) (unlawful driving or taking of a vehicle) and Penal 

Code section 496d, subdivision (a)1(receiving a stolen vehicle). (§ 1170.18, subds. (f),

(g).) We find no error and affirm the order.

1 Undesignated statutory references are to the Penal Code.
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FACTUAL AND PROCEDURAL BACKGROUND

On April 8, 2010, defendant pleaded no contest to first degree burglary (§ 459; 

count 1), unlawfully taking or driving a motor vehicle (Veh. Code, § 10851, subd. (a); 

count 2), and receiving a stolen motor vehicle (§ 496d, subd. (a); count 3). (People v. 

Langston (Oct 13, 2011, No. C065444) [nonpub. opn.].) Defendant also admitted that he

had been convicted of one serious felony within the meaning of the three strikes law 

(§§ 667, subd. (b)-(i), 1170.12) and section 667, subdivision (a), and that he had served 

three prior prison terms (§ 667.5, subd. (b)). The trial court sentenced defendant to an 

aggregate state prison term of 17 years four months. 

Following the passage of Proposition 47, the Safe Neighborhoods and Schools Act 

(Proposition 47), defendant has filed numerous requests to reclassify his 2010 felony 

convictions as misdemeanors, all have been denied. 

On February 6, 2019, defendant filed a document he titled Petition for Proposition 

47 relief to reclassify his felony convictions for violations of Vehicle Code section 10851 

and section 496d as misdemeanors. In a declaration dated August 21, 2018, which 

appears to be part of his February 6 petition, defendant states that on September 19, 2007, 

at approximately 3:21 a.m., police officers observed him “driving a stolen vehicle, 

namely, a 1994 Ford Ranger.” He declared, without citing any supporting evidence in 

the record, that the vehicle’s transmission was “mechanical[ly] defective” before he stole 

it. He attached to his petition a photocopy of the cover of a Kelley Blue Book guide for 

cars built from 1987 to 2000 and a few pages from the book regarding 1994 Ford 

vehicles, factory equipment, and a mileage chart. He stated that the mileage on the 

vehicle was “over 100,000,” and declared that the Kelley Blue Book wholesale value of a 

1994 Ford Ranger was $1,050, and with a mileage deduction, he estimated the value of 

the stolen vehicle was “at or around $950 dollars, or less.” He declared that he had 

“mailed to the Court, the Sacramento Police Report, which record[ed], the actual mileage 
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in 1999, at 62,156 thousand miles,” from which the superior court could infer that the 

mileage of the vehicle in 2007 was “well over 100,000 miles.” 

On February 7, 2019, this court denied a petition for writ of habeas corpus filed by 

defendant without prejudice to filing in the superior court. On February 20, 2019, the 

superior court denied defendant’s petition for relief under Proposition 47. The court 

stated that there was no reason to reconsider defendant’s section 1170.18 motion because 

he failed to show that Vehicle Code section 10851 offense “was primarily a taking and 

not simply a driving, and that he took the vehicle with intent to permanently deprive its 

owner of it.” The court observed that defendant had provided pages from the 2007 

Kelley Blue Book, but he did “not present any evidence as to which of these models the 

vehicle in question was, thus the court cannot assess whether the value of it was above or 

below $950 at the time of the commission of the offense.” The court’s order is silent as 

to defendant’s request to reclassify his felony conviction for a violation of section 496d, 

subdivision (a). 

On March 20, 2019, defendant filed a letter requesting resentencing based on the 

Supreme Court’s decision in People v. Buycks (2018) 5 Cal.5th 857.2 

He then filed a petition for writ of habeas corpus in the superior court, on March 27, 

2019, asking for resentencing on a prior prison term enhancement under Buycks. The 

record does not include any motions filed by defendant asking to have his felony 

convictions for violations of Vehicle Code section 10851 and section 496d, subdivision 

(a), reclassified as misdemeanors between the superior court’s February 20, 2019 order 

denying his petition and defendant’s March 27, 2019 writ. On March 27, 2019, the 

2 In People v. Buycks, supra, 5 Cal.5th at page 871, the Supreme Court held that 

“Proposition 47’s mandate that the resentenced or redesignated offense ‘be considered a 

misdemeanor for all purposes’ [citation] permits defendants to challenge felony-based 

section 667.5 and 12022.1 enhancements when the underlying felonies have been 

subsequently resentenced or redesignated as misdemeanors.” 
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superior court ordered: “Defendant Walter Langston has again sent the court a 

postjudgment motion [seeking] reconsideration of this court’s repeated denials of his 

Penal Code § 1170.18 motion for relief under Proposition 47. [¶] For the reasons stated 

in the past denials, this will not be revisited.” 

The record does not include any motions filed by defendant between March 27, 

2019, and May 8, 2019, asking to have his felony convictions for violations of Vehicle 

Code section 10851 and section 496d, subdivision (a), reclassified as misdemeanors. 

However, on May 8, 2019, the superior court issued an order identical to the order filed 

on March 27 denying defendant relief under Proposition 47. On May 10, the superior 

court denied defendant’s request to have one of his section 667.5, subdivision (b) 

enhancements dismissed based on the reclassification in a separate case of a 2001 felony 

conviction for a violation of section 496, subdivision (a) to a misdemeanor. 

On June 7, 2019, this court denied a petition for writ of habeas corpus filed by 

defendant. The order advised defendant that the proper procedure for obtaining the 

requested relief--reclassification of his felony convictions as misdemeanors under 

Proposition 47--was to file a petition under section 1170.18 and then timely appeal if the 

petition was denied. On June 18, 2019, defendant filed a notice of appeal from the May 8 

and May 10, 2019 orders denying his requests for relief under Proposition 47.3 

3 The record does not definitively show that defendant’s February 6, 2019 motion to 

reclassify his Vehicle Code section 10851 and section 496d, subdivision (a) convictions 

as misdemeanors is the same petition, including the same facts, that the superior court 

referenced in its May 8, 2019 order denying defendant’s “postjudgment motion” seeking 

“reconsideration of this court’s repeated denials of his Penal Code § 1170.18 motion for 

relief under Proposition 47.” However, both parties take this approach to the record, so 

we do as well. 
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DISCUSSION

Defendant contends: “This appeal concerns the denial on May 8, 2019, of his 

Prop 47 Petition regarding his Vehicle Code section 10851 and his section 496d 

convictions. The court denied defendant’s petition filed on February 6, 2019 based on the 

‘reasons stated in past denials.’ ” Defendant argues that his Vehicle Code section 10851 

conviction should be eligible for resentencing under Proposition 47 because convictions 

for posttheft driving are eligible under the statute. He alternatively claims that treating 

people with Vehicle Code section 10851 convictions for unlawful taking of a vehicle and 

posttheft driving of a vehicle differently violates equal protection. He contends that the 

superior court erred in denying his petition to reclassify his section 496d conviction as a 

misdemeanor. Alternatively, he argues that if Proposition 47 does not apply, treating 

persons convicted of receiving stolen motor vehicles and receiving stolen property 

differently violates equal protection. Finally, he requests that we remand the matter to 

the superior court for a hearing where he can present additional evidence to show his 

eligibility for resentencing. 

“In November 2014, California voters approved Proposition 47,” which “amended 

various provisions of the Health and Safety Code and the Penal Code to reclassify as 

misdemeanors certain narcotics and theft offenses that had been denominated either 

felonies or ‘wobblers’ (i.e., crimes capable of being charged as either felonies or 

misdemeanors).” (People v. Valenzuela (2019) 7 Cal.5th 415, 418, 422.) Section 490.2 

was added to the Penal Code by Proposition 47. (Voter Information Guide, Gen. Elec. 

(Nov. 4, 2014) text of Prop. 47, § 8, p. 72 (Voter Guide).) Section 490.2 generally 

“reduced felony offenses consisting of theft of property worth $950 or less to 

misdemeanors.” (People v. Bullard (2020) 9 Cal.5th 94, 99 (Bullard); see § 490.2, subds. 

(a), (c).) Section 1170.18, another provision added to the Penal Code by Proposition 47 

(Voter Guide, supra, text of Prop. 47, § 14, pp. 73-74), established a procedure through 

which “a person who already has completed his or her sentence for a qualifying felony 
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[that was reclassified as a misdemeanor by Prop. 47] . . . may have the underlying 

conviction redesignated as a misdemeanor. ([§ 1170.18], subds. (f)-(h).)” (Valenzuela, at 

p. 422.) The crimes in this case were committed after Proposition 47 was enacted and, 

therefore, we are concerned here with the prospective changes effected by the law. 

(People v. Lara (2019) 6 Cal.5th 1128, 1135 (Lara).)

I

Conviction Under Vehicle Code Section 10851

Defendant claims that a conviction for posttheft driving falls within the purview of 

Proposition 47, requiring the prosecutor to prove the value of the stolen vehicle. As we 

discuss, defendant’s claim is foreclosed by Lara.

“Vehicle Code section 10851 punishes not only taking a vehicle, but also driving it 

without the owner’s consent, and ‘with intent either to permanently or temporarily 

deprive the owner thereof of his or her title to or possession of the vehicle, whether with 

or without intent to steal the vehicle.’ ” (People v. Page (2017) 3 Cal.5th 1175, 1182 

(Page), quoting Veh. Code, § 10851, subd. (a).) In Page the California Supreme Court 

addressed the question of whether Proposition 47 applies to convictions for vehicle theft 

under Vehicle Code section 10851 and concluded that “obtaining an automobile worth 

$950 or less by theft constitutes petty theft under section 490.2 and is punishable only as 

a misdemeanor, regardless of the statutory section under which the theft was charged.” 

(Page, at p. 1187.) To establish eligibility for resentencing, “a defendant must show not 

only that the vehicle he or she was convicted of taking or driving was worth $950 or less 

[citation], but also that the conviction was based on theft of the vehicle rather than on 

posttheft driving [citation] or on a taking without the intent to permanently deprive the 

owner of possession [citation].” (Id. at p. 1188.)

Recently, our high court concluded that Proposition 47 applies to all vehicle 

takings under the statute, regardless of whether the intent is to deprive the owner of the 

vehicle temporarily or permanently. (Bullard, supra, 9 Cal.5th at pp. 108-109.) In Lara
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the court considered whether Proposition 47 applies to convictions for posttheft driving 

under Vehicle Code section 10851. (Lara, supra, 6 Cal.5th at p. 1136.) In concluding it 

does not, the court explained that “only theft-based violations fall within Penal Code 

section 490.2, making them misdemeanors unless the vehicle stolen was worth more than 

$ 950” (id. at pp. 1135-1136), and “ ‘ “unlawful driving of a vehicle is not a form of theft 

when the driving occurs or continues after the theft is complete . . . . Therefore, a 

conviction under section 10851[, subdivision ](a) for posttheft driving is not a theft 

conviction” ’ ” (id. at p. 1136), and “a violation committed by posttheft driving may be 

charged and sentenced as a felony regardless of value” (ibid.). Under Page, Lara, and 

Bullard, “Proposition 47’s substantive effect on [Vehicle Code] section 10851 can be 

summarized as follows: Except where a conviction is based on posttheft driving (i.e., 

driving separated from the vehicle’s taking by a substantial break), a violation of section 

10851 must be punished as a misdemeanor theft offense if the vehicle is worth $950 or 

less.” (Bullard, supra, 9 Cal.5th at p. 110.)

In this case, as the trial court observed, defendant failed to affirmatively show he

was convicted of the taking or driving of a vehicle that was worth $950 or less at the time 

of the crime and that the conviction was based on theft of the vehicle rather than on 

posttheft driving. (Page, supra, 3 Cal.5th at p. 1188.) Defendant’s declaration about the 

value of the vehicle is not supported by independent evidence in the record. More 

importantly, defendant produced no evidence that the conviction was based on a theft 

rather than posttheft driving. Accordingly, we must reject his claim.

II

Conviction for Receiving Stolen Vehicle Under Section 496d

In his opening brief, defendant argues Proposition 47 applies to his conviction for 

receiving a stolen vehicle under section 496d, subdivision (a). As he concedes in his 

reply brief, his statutory argument is foreclosed by our high court’s recent decision in 

People v. Orozco (2020) 9 Cal.5th 111 (Orozco). 
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Proposition 47 did not amend section 496d or otherwise refer to it. In Orozco, 

supra, 9 Cal.5th 111, our Supreme Court held that “Proposition 47’s revision to section 

496, making the offense of receiving stolen property a misdemeanor when the value of 

the property is $950 or less, does not extend to convictions for receiving a stolen vehicle 

under section 496d.” (Id. at p. 115.) Orozco also rejected the argument that “section 

496d qualifies as a ‘theft offense’ within the meaning of section 490.2 and is thus subject 

to section 490.2’s general provision that all theft offenses involving property valued at 

$950 or less are misdemeanors.” (Orozco, at p. 121.) In light of the decision in Orozco, 

we reject defendant’s claim that Proposition 47 entitles him to relief from his felony 

conviction for possession of stolen property under section 496d, subdivision (a), absent 

evidence of value exceeding $950.

III

Equal Protection Claims

Defendant further claims that foreclosing him from relief under Proposition 47 

would violate equal protection principles. We disagree.

A. Conviction Under Vehicle Code Section 10851

“The concept of equal treatment under the laws means that persons similarly 

situated regarding the legitimate purpose of the law should receive like treatment. 

[Citation.] ‘ “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.” [Citations.] This initial inquiry is not 

whether persons are similarly situated for all purposes, but “whether they are similarly 

situated for purposes of the law challenged.” ’ ” (People v. Morales (2016) 63 Cal.4th 

399, 408.) Moreover, “neither the existence of two identical criminal statutes prescribing 

different levels of punishments, nor the exercise of a prosecutor's discretion in charging 

under one such statute and not the other, violates equal protection principles.” (People v.

Wilkinson (2004) 33 Cal.4th 821, 838.)
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Proposition 47 applies to certain theft- and drug-related felonies (People v. Colbert

(2019) 6 Cal.5th 596, 598; People v. DeHoyos (2018) 4 Cal.5th 594, 597), and our 

Supreme Court has determined that posttheft driving is not a theft offense (Lara, supra, 6 

Cal.5th at p. 1136). The holding of Lara therefore forecloses defendant’s claim at the 

first step: demonstrating that he is similarly situated to those convicted of theft- and 

drug-related offenses, which Proposition 47 is, by its terms, directed.

B. Conviction for Receiving Stolen Vehicle Under Section 496d

Defendant fares no better with respect to receiving a stolen vehicle under section 

496d. The fact that section 496 and section 496d both criminalize receipt of stolen 

property is, in and of itself, insufficient to establish an equal protection violation. As 

previously stated, “neither the existence of two identical criminal statutes prescribing 

different levels of punishments, nor the exercise of a prosecutor’s discretion in charging 

under one such statute and not the other, violates equal protection principles.” (People v. 

Wilkinson, supra, 33 Cal.4th at p. 838.) “[N]umerous 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.” (Id. at pp. 838-839, quoting Manduley v. 

Superior Court (2002) 27 Cal.4th 537, 568-569.)

Section 496d was added to the Penal Code effective January 1, 1999. (Assem. Bill 

No. 2390, approved by Governor, Sept. 21, 1998 (1997-1998 Reg. Sess.) ch. 710, § 1.) 

The bill’s author stated: “ ‘[T]his proposal would add a section to the Penal Code to 

encompass only motor vehicles related to the receiving of stolen property. Existing law 

provides penalties for the receiving of stolen property, but is not specific to vehicle theft. 

This proposal would allow persons convicted of this section to be identified along with 
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vehicle thieves for the purposes of establishing priors, for statistical purposes and/or to 

target those persons involved in vehicle theft.’ ” (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 [arguments in support].) Further, the “ ‘proposal would 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.’ ” (Ibid.)

Given the stated purposes underlying the addition of section 496d to the Penal 

Code, the voters could have reasonably determined that in targeting vehicle thieves and 

those involved in the business of vehicle theft (for example, those involved in the 

business of stripping stolen vehicles for their parts), the statute criminalized more serious 

conduct than the petty theft and petty theft-related conduct at which Proposition 47 was 

directed. (People v. Bussey (2018) 24 Cal.App.5th 1056, 1064, review dismissed Jun. 24, 

2020, S250152.) This view is bolstered by the Supreme Court’s observation in Orozco

that its construction of Proposition 47 works “no absurdity because the electorate 

plausibly could have chosen to punish receipt of stolen vehicles more severely than 

vehicle theft or receipt of other types of stolen property. For example, the electorate 

could have concluded that stolen vehicles, unlike other items of stolen property, are often 

dismantled and sold for parts on the secondary market, which can raise their worth above 

retail value.” (Orozco, supra, 9 Cal.5th at p. 122.)

This court previously explained: “As for the decision to treat section 496d 

violations differently than receiving stolen property generally under section 496, it is 

plausible that the drafters elected to proceed in an incremental way, gauging the effects of 

the proposition’s sea change in penal law, and—in light of the small number of 

functioning vehicles worth under $950 at present values—did not consider it an injustice 
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to fail to include them and instead leave the matter to the charging discretion of 

prosecutors.” (People v. Bussey, supra, 24 Cal.App.5th at p. 1064.)

Another rational basis was discussed by the Court of Appeal in People v. Acosta

(2015) 242 Cal.App.4th 521. In that case, the defendant was convicted of attempted 

second degree vehicle burglary (§§ 664, 459) and he unsuccessfully petitioned the trial 

court to reduce his felony conviction to a misdemeanor under Proposition 47. (Acosta, at 

pp. 523-524.) The court rejected the defendant’s arguments that sections 490.2 and 

459.5, the misdemeanor shoplifting statutes enacted by Proposition 47, applied to his 

burglary conviction. (Acosta, at pp. 526-527.) It also rejected the defendant’s equal 

protection argument, stating: “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” [citation], the Legislature has “broad discretion” to proceed 

in an incremental and uneven manner without necessarily engaging in arbitrary and 

unlawful discrimination. [Citations.]’ ” (Id. at pp. 527-528.)

It bears repeating that defendant must show the absence of any rational reason for 

the allegedly differential treatment. (People v. Chatman (2018) 4 Cal.5th 277, 289.) 

Even if we assume for the sake of argument that defendant has demonstrated those 

convicted under section 496d are similarly situated to those convicted under section 496, 

we have identified several rational bases for treating receiving stolen vehicles under 

section 496d differently from receiving other stolen property under section 496, 

foreclosing defendant’s equal protection challenge.
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IV

Request for Remand

Defendant asks that we remand the matter to the superior court so he can present 

evidence at a hearing to show that his Vehicle Code section 10851 conviction was based 

on stealing a car valued at $950 or less. Defendant has had ample opportunity to show 

his eligibility for resentencing, but he has failed to do so. He has failed to demonstrate 

how he could make the required showing. While defendant stated in his petition that he 

stole the car, a “defendant cannot establish eligibility under section 1170.18 by declaring 

or testifying that he or she also stole the vehicle: such testimony would not prove the 

conviction was based on theft rather than on post-theft driving, and therefore would fail 

to establish that the defendant would only have been guilty of a misdemeanor (petty theft 

under section 490.2, subd. (a)) had Proposition 47 been in effect at the time of the 

offense.” (Page, supra, 3 Cal.5th at p. 1189.) Further, defendant was convicted of 

Vehicle Code section 10851 and section 496d, subdivision (a), for receiving the same 

stolen vehicle. A person who violates Vehicle Code section 10851, subdivision (a) based 

on theft cannot be convicted of receiving the same vehicle as stolen property. (People v. 

Garza (2005) 35 Cal.4th 866, 876; Orozco, supra, 9 Cal.5th at p. 122.) Thus, it would 

appear that defendant’s Vehicle Code section 10851 conviction was based on posttheft 

driving rather than theft. For all these reasons, remand is unwarranted.
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DISPOSITION

The superior court’s order denying defendant’s application to designate his 

convictions for violating Vehicle Code section 10851, subdivision (a) and Penal Code 

section 496d, subdivision (a) as misdemeanors is affirmed.

 /s/

Duarte, Acting P. J.

We concur:

 /s/

Hoch, J.

 /s/

Krause, J.