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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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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 conviction for receiving a 

stolen vehicle under section 496d. The trial court denied the petition on the ground that a 

conviction under section 496d does not meet Proposition 47’s eligibility criteria as a 

matter of law.

Defendant raises two grounds in support of his argument that he is eligible for 

resentencing 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), which makes the receipt of stolen property valued at $950 or less

punishable as a misdemeanor. Second, he contends that the denial of his petition for 

resentencing violated his equal protection rights. 

 

1

Subsequent undesignated statutory references are to the Penal Code.
2

This court recently considered and rejected these arguments in 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. PROCEDURAL BACKGROUND2

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 released on bail at the time he committed the 

offense, which release had been revoked due to his commission of another felony.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 of 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 Proposition 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 petition would violate his equal 

protection rights. Defendant appeals from the trial court’s denial of his petition.

II. DISCUSSION

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 that 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-related offenses to 

misdemeanors. As relevant here, the act amended section 496, which prohibits the 

receipt of stolen property. Newly amended section 496 provides that, “if the value of the 

property does not exceed nine hundred fifty dollars ($950), the offense 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 felony 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

The 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 ascertain 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. 688.)

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 concluded 

that a defendant convicted of receipt 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 resentencing 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 constitutional 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 violate 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 classification 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]. In the years since Olivas was decided, however, our 

Supreme Court has applied its holding narrowly. In People v. Wilkinson (2004) 

33 Cal.4th 821, the court observed that “[t]he language in Olivas could be interpreted to 
5

require application of the strict scrutiny 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.) The court held that the rational basis standard applies to sentencing 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 receipt 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 offenses. 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. 690.) 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. DISPOSITION

The judgment is affirmed.
_______________________________

Márquez, J.

WE CONCUR:

______________________________

 Premo, Acting P.J.

______________________________

 Grover, J.