Filed 3/28/16 P. v. Barnes CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v.
TIMOTHY BRIAN BARNES , Defendant and Appellant. H041943 (Santa Clara County Super. Ct. No. C1364563 )

Defendant Timothy Brian Barnes appeals from the denial of his petition for resentencing under Proposition 47. (Pen. Code, § 1170.18.) 1 Defendant contends Proposition 47 makes him eligible for resentencing on his c onviction for receiving a
stolen vehicle under section 496d . The trial court denied the petition on the ground that a
conviction under s ection 496d does not meet Proposition 47’s eligibility criteria as a
matter of law. Defendant raises two grounds in su pport of his argument that he is eligible for

re sentencing under Proposition 47. First, he contends the offense of receiving a stolen vehicle was implicitly included in Proposition 47’s amendment of section 496, subdivision (a), w hich makes the receipt of stolen property valued at $950 or less punishable as a misdemeanor. Second, he contends th at the denial of his petition for resentencing violate d his equal protection rights.

1 Subsequent undesignated statutory references are to the Penal Code.2

This court recently considered and rejected these arguments i n People v. Nichols (2016) 244 Cal.App.4th 681 ( Nichols ). For the reasons set forth in Nichols , we find defendant’s claims without merit. Accordingly, we will affirm the judgment.
I. P ROCEDURAL B ACKGROUND 2 On September 4, 2013, the prosecution charged defendant by felony complaint with receiving a stolen vehicle

— a 1992 Nissan Sentra

— under Section 496d. The complaint also alleged defendant had been release d on bail at the time he committed the
offense , which release had been revoked due to his commissio n of another felony

. (Pen. Code, § 12022.1 .) On October 17, 2013, defendant pleaded no contest to the offense as charged and admitted the enhancement allegation. On December 6 , 2013, the trial court suspended imposition o f sentence and granted a three

- year term of formal probation with eight months in county jail as a condition of probation . The court also ordered defendant to pay $580 in restitution to the victim. On December 24, 2014, defendant petitioned the trial court under Pro position 47
to recall his sentence. The trial court denied the petition on the ground that Section 496d
was not included in the offenses eligible for resentencing under Proposition 47. The court also rejected defendant’s claim that the denial of his peti tion would violate his equal protection rights. Defendant appeals from the trial court’s denial of his petition.
II. D ISCUSSION A. Statutory Eligibility for Resentencing under Proposition 47
Defendant contends his conviction for receiving a stolen vehicle under section 496d is eligible for resentencing based on amendments made by Proposition 47 to a closely related section of the Penal Code

–– section 496 , subdivision (a)

–– which prohibits the receipt of stolen property generally

. The Attorney General responds tha t Proposition 47 did not amend section 496d to make receipt of a stolen vehicle eligible for resentencing.

2 The facts of the offense are not set forth in the record.3

1. Background In November 2014, the voters enacted Proposition 47, the Safe Neighborhoods and Schools Act, which reduced certain drug

- and theft

- rela ted offenses to misdemeanors. As relevant here, the act amended section 496 , which prohibits the receipt of stolen property

. N ewly amended s ection 496 provides that , “ if the value of the property does not exceed nine hundred fifty dollars ($950), the off ense shall be a misdemeanor, punishable only by imprisonment in a county jail not exceeding one
year

. . . .” 3 (§ 496, subd. (a).) Proposition 47 also created a new resentencing scheme for persons serving felony sentences for offenses which were made misdemeanors by the act. (§ 1170.18, subd. (a).) Under the new resentencing scheme, a person currently serving a sentence for a felo ny conviction may petition for recall of his or her sentence if the person would have been guilty of a misdemeanor had Proposition 47 been in effect at
the time of the offense

. 2. Receipt of a Stolen Vehicle Under Section 496d Was Not Included in Proposition 47 ’s Resentencing Scheme
T he issue of defendant’s eligibility for resentencing is a question of statutory construction. “ Statutory construction is a question of law which we decide independently. [Citation.] Our role in construing any statute is to asc ertain the Legislature ’ s intent and effectuate the purpose of the law. Generally, we accomplish this task by giving the statutory words their usual, ordinary meanings. [Citation.] ‘ “ If the words of the statute are clear, the court should not add to or alter them to accomplish a purpose that does not appear on [its] face

. . . or from its legislative history.” ’ [Citation.]” ( People v. Love (2005) 132 Cal.App.4th 276, 284.) “Additionally, we
consider the maxim expressio unius est exclusio alterius : ‘ The expression of some things in a statute necessarily means the exclusion of other things not expressed. [Citation.]

3 This subdivision excludes certain categories of persons from misdemeanor sentencing. Defendant’s petition states he is not such a person.4

Under that maxim, where the Legislature expressly includes certain criminal offenses in a statute, the legislative intent was to exclude offenses that were not mentioned.” ( Nichols , supra , 244 Cal.App.4th at p. 68 8 .)
In Nichols , supra , this court applied these principles to the same claim raised by
defendant here. We concluded that because section 1170.18 expressly includes certain
theft

- related offenses ( §§ 459.5, 473, 476a, 490.2, 496, & 666) , the voters did not intend
to include other theft

- related offenses such as section 496d. Accordingly, we concl uded
that a defendant convicted of re ceipt of a stolen vehicle under section 496d is not eligible for resentencing under Proposition 47

. We adopt Nichols ’ holding and will apply it here

. For the reasons set forth in
Nichols , we conclude defendant is not eligible under Proposition 47 for res entencing of
his conviction under section 496d.

. B. The Denial of Defendant’s Petition for Resentencing Did Not Violate his Equal Protection Rights Defendant contends the denial of a petition for resentencing of a conviction under
section 496d violates his c onstitutional right to equal protection because there is no justification for punishing defendants differently based on whether they are convicted
under section 496 or 496d

. The Attorney General responds that the denial of defendant’s petition did not vio late his equal protection rights because the voters had a rational basis to support the challenged classification. Defendant argues that the proper standard for analyzing his equal protection claim is strict scrutiny, not rational basis , because the classifi cation affects his fundamental right to liberty

. For this proposition, he relies on People v. Olivas (1976) 17 Cal.3d 236 ( Olivas ) [ personal liberty is a fundamental interest protected under both the California
and United States Constitutions ]

. I n the years since Olivas was decided, however, our Supreme Court h as applied its holding narrowly

. I n People v. Wilkinson (2004)
33 Cal.4th 821, the court observed that “ [t] he language in Olivas could be interpreted to5

require application of the strict sc rutiny standard whenever one challenges upon equal protection grounds a penal statute or statutes that authorize different sentences for comparable crimes, because such statutes always implicate the right to ‘personal liberty’
of the affected individuals. Nevertheless, Olivas properly has not been read so broadly.” ( Id . at p. 837.) The court concluded: “We do not read Olivas as requiring the courts to subject all criminal classifications to strict scrutiny requiring the showing of a compelling state interest therefor.” ( Id. at p. 838, quoting People v. Davis (1979) 92 Cal.App.3d 250, 258.) T he court held that the rational b asis standard applies to se ntencing disparities of the type alleged here. ( Ibid. ) Applying the rational basis test in Nichols , supra , this court concluded a rational basis exists for treating the receipt of a stolen vehicle more harshly than the receip t of other stolen property, even where the value of the stolen property is less than $950 in
both cases. “One reason is that the offense of buying or receiving a stolen motor vehicle may have greater consequences for the victims than other theft related o ffenses. The owners of motor vehicles are often dependent on their vehicles for transportation to work and school, and for obtaining the necessities of life

. . . .” ( Nichols , supra , 244 Cal.App.4th at p. 6 90 .) Another reason is that stolen vehicles are often dismantled and sold for parts in so

- called “chop shops.” ( Ibid. ) Prosecutorial discretion is yet another justification for disparate punishments. ( Ibid. ) We adopt Nichols ’ holding and will apply it here. For the reasons set forth in
Nichols , we conclude the denial of defendant’s petition for resentencing of his section 496d conviction did not violate his constitutional right to equal protection of the law.
III. D ISPOSITION The judgment is affirmed._______________________________ Márquez, J.

WE CONCUR:

______________________________ Premo , Acting P.J.

______________________________ Grover , J.