Filed 12/8/15 P. v. Salgado CA4/3

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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

MARIO SALGADO,

 Defendant and Appellant.

 G051358

 (Super. Ct. No. 12WF1843)

 O P I N I O N

Appeal from a postjudgment order of the Superior Court of Orange County, 

Jonathan S. Fish, Judge. Affirmed.

Susan S. Bauguess, 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, Christen Somerville, 

Deputy Attorney General, for Plaintiff and Respondent.
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Mario Salgado appeals an order denying his petition for resentencing under 

Proposition 47. Although he was not convicted of an offense that qualifies him for 

resentencing, he contends equal protection principles require that his offense be treated as 

such. We disagree and affirm the trial court’s order. 

PROCEDURAL BACKGROUND

In 2012, Salgado was charged in a felony complaint with unlawfully taking

a vehicle in violation of Vehicle Code section 10851, subdivision (a).1 He was also 

alleged to have suffered two prior strike convictions and served a prior prison term. 

Before the preliminary hearing, Salgado pleaded guilty and admitted the prison prior in 

exchange for dismissal of his prior strikes and a 16-month sentence. As part of his plea 

agreement, Salgado admitted he “unlawfully drove a 1996 Honda Civic without the 

consent of the owner and with the intent to temporarily deprive the owner of possession.” 

However, there is nothing in the record indicating how much the vehicle was worth. 

On the heels of Proposition 47’s passage in November 2014, Salgado 

petitioned the trial court to reduce his felony conviction to a misdemeanor and resentence 

him accordingly. Although Proposition 47 does not apply to violations of section 10851, 

Salgado argued his conviction fell within the scope of the initiative because the value of 

the car he took did not exceed $950. Alternatively, Salgado argued he was entitled to 

Proposition 47 relief as a matter of equal protection. The trial court denied his petition. 

DISCUSSION

Appellant renews his claims regarding the scope of Proposition 47 and his 

entitlement to equal protection under the law. However, we discern no basis for 

disturbing the trial court’s ruling. 

“Proposition 47 reclassifies as misdemeanors certain non-serious, 

nonviolent crimes that previously were felonies, and authorizes trial courts to consider 

 

1 Unless noted otherwise, all further statutory references are to the Vehicle Code.
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resentencing anyone who is currently serving a sentence for any of the listed offenses.” 

(People v. Awad (2015) 238 Cal.App.4th 215, 218.) The crime of unlawful vehicle 

taking is a so-called “wobbler” offense because it is punishable in the court’s discretion 

as a felony or a misdemeanor. (§ 10851, subd. (a); People v. Douglas (1999) 20 Cal.4th 

85, 88; People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) The crime was 

not reclassified as a pure misdemeanor by Proposition 47, nor is it listed within the text of 

that provision. (See Pen. Code, § 1170.18.) Therefore, defendants who have been 

convicted of that offense are generally not eligible for resentencing. (See People v. Page

(2015) 241 Cal.App.4th 714, 718 [noting that “the statutory language setting the 

punishment for violations of . . . section 10851 remains the same, before and after 

Proposition 47” and that the crime of unlawful vehicle taking “is not included among the 

enumerated sections amended or added by Proposition 47”].)

However, Proposition 47 did address the issue of theft-related offenses by 

adding section 490.2 to the Penal Code. That provision effectively redraws the boundary 

line between grand and petty theft in some cases. It provides, “Notwithstanding [Penal 

Code] [s]ection 487 [defining grand theft] 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[.]” (Pen. Code, § 490.2, 

subd. (a).) Unlike section 10851, Penal Code section 490.2 is expressly listed in 

Proposition 47 as a criminal statute that has been added or amended by the terms of the 

initiative. (Pen. Code, § 1170.18, subd. (a).) Therefore, if a person has been convicted of 

an offense that comes within the terms of that statute, he or she would be entitled to seek 

relief under Proposition 47.

The main problem for Salgado is that there is nothing in the record of his 

unlawful taking conviction that indicates the value of the car he took was $950 or less. 

Moreover, in pleading guilty Salgado admitted only the intent to temporarily deprive the 
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owner of possession, not the intent to steal, which is the crux of any theft offense. 

Therefore, the conviction does not satisfy the criteria for petty theft under Penal Code 

section 490.2. 

Relying on People v. Rodriguez (1998) 17 Cal.4th 253, Salgado contends 

the prosecution had the burden of proving the value of the car he took and establishing he 

was ineligible for relief under Proposition 47. However, Rodriguez is no help to Salgado 

because it involved the sufficiency of the evidence to support a prior felony allegation for 

purposes of the Three Strikes law. (Id. at pp. 261-262.) In that context, it makes sense to 

impose the burden of proof on the prosecution because it is seeking to use the prior

felony conviction to increase the defendant’s punishment. 

In contrast, Proposition 47 is designed to ameliorate the effect of a prior 

felony conviction. Because the initiative is designed for the defendant’s benefit, Salgado 

had the burden of proving he satisfied the criteria for relief based on the record of his 

conviction. (Pen. Code, § 1170.18, subd. (b); People v. Rivas-Colon (2015) 241 

Cal.App.4th 444, 448-450; People v. Sherow (2015) 239 Cal.App.4th 875, 880.) Since 

the record of Salgado’s unlawful vehicle taking conviction is bereft of evidence regarding 

the value of the vehicle he took, he is not entitled to resentencing relief by virtue of Penal 

Code section 490.2’s inclusion in Proposition 47. 

Salgado’s fallback position is that the equal protection clause requires his 

unlawful vehicle taking conviction be treated the same way as a Penal Code section 490.2 

conviction arising from the theft of a car valued at $950 or less. However, as explained 

above, Salgado has failed to prove the value of the car he took. Thus, he cannot establish 

he is similarly situated to persons who have violated Penal Code section 490.2, which is 

fatal to his equal protection claim. (People v. Brown (2012) 54 Cal.4th 314, 328-330 [the 

equal protection clause applies only when the state treats similarly situated persons in a 

disparate manner].) 

Even if Salgado could satisfy the similarly-situated requirement, the law 
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is clear that “‘neither the existence of two identical criminal statutes prescribing different 

levels of punishments, nor the existence of a prosecutor’s discretion in charging under 

one such statute and not the other violates equal protection principles.’ [Citation.]” 

(People v. Page, supra, 241 Cal.App.4th at p. 719.) In other words, the state has 

considerable leeway in terms of choosing which punishment is suitable for a particular 

offender when his conduct violates more than one statute. So too does it have broad 

authority to decide which offenders may qualify for leniency under a sentence reduction 

scheme such as Proposition 47. (Ibid.) Just because Proposition 47 provides “for the 

possibility of sentence reduction for a limited subset of those previously convicted of 

grand theft (those who stole an automobile or other personal property valued $950 or 

less), but not those convicted of [violating] section 10851,” that does not mean the law 

violates equal protection. (Id. at pp. 719-720.) In fact, unless a defendant seeking 

Proposition 47 relief can show he has been singled out for differential treatment based on 

some invidious criteria, no equal protection violation will be found. (Ibid.) Because 

Salgado has failed to make such a showing, his equal protection claim cannot prevail. 

DISPOSITION

The trial court’s order denying Salgado’s Proposition 47 petition is 

affirmed.

BEDSWORTH, ACTING P. J.

WE CONCUR:

MOORE, J.

FYBEL, J.