Filed 5/3/17 P. v. Chesshir CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

CRISS DUANE CHESSHIR,

Defendant and Appellant.


E065476

(Super.Ct.No. FVI013715)

O P I N I O N


APPEAL from the Superior Court of San Bernardino County. Colin J. Bilash, Judge. Affirmed.
Stephanie M. Adraktas, 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, and Eric A. Swenson and Allison V. Hawley, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant, Criss Duane Chesshir, appeals from an order denying his Proposition 47 petition to designate his 2002 felony conviction for receiving a stolen vehicle (Pen. Code, § 496d, subd. (a)) as a misdemeanor pursuant to section 1170.18. For the reasons we explain, we affirm the order denying the petition.
Defendant claims his Proposition 47 petition was erroneously denied because, in enacting Proposition 47, an initiative measure, the voters intended to include felony convictions for receiving a stolen vehicle (§ 496d) worth $950 or less within the class of felony convictions eligible to be designated as misdemeanors under Proposition 47—for example, felony convictions for receiving stolen property (§ 496, subd. (a)). He also claims the denial of his petition violated his right to equal protection, because persons with felony convictions for buying or receiving stolen property worth $950 or less may have their convictions designated as misdemeanors, while similarly situated persons with felony convictions for buying or receiving a stolen vehicle worth $950 or less may not.
These issues are currently under review by our state Supreme Court in several decisions, including two decisions from this court: People v. Varner (2016) 3 Cal.App.5th 360 (Varner), review granted November 22, 2016, S237679, People v. Nichols (2016) 244 Cal.App.4th 681, review granted April 20, 2016, S233055, People v. Peacock (2015) 242 Cal.App.4th 708, review granted February 17, 2016, S230948, and People v. Garness (2015) 241 Cal.App.4th 1370, review granted January 27, 2016, S231031.
Varner was issued on September 15, 2016, after rule 8.1115(e) of the California Rules of Court went into effect on July 1, 2016. Thus, Varner is citable for its “potentially persuasive value,” pending the Supreme Court’s review of the case. (Cal. Rules of Court, rule 8.1115(e) [effective July 1, 2016, published Court of Appeal opinions, while under Supreme Court review, are citable for their “potentially persuasive value” but not as binding precedent unless otherwise ordered by the Supreme Court].) We find the reasoning of Varner persuasive and follow it in this case.
II. DISCUSSION
A. Overview of Proposition 47
On November 4, 2014, California voters enacted an initiative statute, Proposition 47, and it went into effect the next day. (Cal. Const., art. II, § 10, subd. (a).) “Proposition 47 makes certain drug- and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. These offenses had previously been designated as either felonies or wobblers (crimes that can be punished as either felonies or misdemeanors).” (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.)
Proposition 47 created a new resentencing provision: section 1170.18. (People v. Rivera, supra, at p. 1092.) Section 1170.18 provides that a person who has completed a felony sentence for an offense that would have been a misdemeanor if Proposition 47 had been in effect when the offense was committed, may petition the superior court to designate the felony conviction as a misdemeanor. (§ 1170.18, subd. (f).)
B. Facts and Procedural History
On September 13, 2002, pursuant to a plea agreement, defendant pled guilty to one count of buying or receiving a stolen vehicle (§ 496d, subd. (a)), namely, a 1992 white Jeep Wrangler, and admitted a prior strike conviction (§ 667, subds. (b)-(i)). On April 4, 2003, defendant was sentenced to four years in prison: the middle term of two years, doubled to four years based on the prior strike conviction. (§ 1170.4.)
On January 14, 2015, defendant filed a Proposition 47 petition, alleging he had completed his sentence on the section 496d conviction and asking the court to designate the conviction as a misdemeanor pursuant to section 1170.18. On the same date, the People filed a response to the petition, alleging defendant was not entitled to the relief requested because “PC 496d is not affected by Prop. 47.”
On January 29, 2016, the court issued an order denying the petition without stating its reasons for the denial. A hearing on the petition was held on the same date, January 29, 2016, but the record on appeal does not contain a reporter’s transcript of the hearing, nor does the record on appeal indicate what, if any, evidence was admitted at the hearing. A January 29 minute order indicates that a prosecutor appeared at the hearing on behalf of the People, and defendant was not present but was represented by appointed counsel. The minute order states: “The Court finds that Petitioner does not satisfy the criteria in Penal Code [section] 1170.18 and is not eligible for resentencing. Defense petition/ Motion for resentencing is DENIED. Order Filed.” Defendant timely appealed.
III. DISCUSSION
A. Proposition 47 Does Not Apply to Violations of Section 496d, Subdivision (a)
Defendant claims his Proposition 47 petition was erroneously denied because the voters, in enacting Proposition 47, intended to include felony convictions for buying or receiving a stolen vehicle, in violation of section 496d, subdivision (a), along with other theft-based felony convictions that must be reduced to misdemeanors pursuant to Proposition 47 if the value of the vehicle in question was $950 or less. We disagree.
“‘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 identified 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.)” (Varner, supra, 3 Cal.App.5th at p. 365.) To these ends, or in order to achieve these purposes, “Proposition 47 (1) added chapter 33 to the Government Code ([Gov. Code,] § 7599 et seq.), (2) added sections 459.5, 490.2, and 1170.18 to the Penal Code, and (3) amended Penal Code sections 473, 476a, 496, and 666 and Health and Safety Code sections 11350, 11357, and 11377 (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) test of Prop 47, §§ 4-14, pp. 70-74.)” (People v. Rivera, supra, 233 Cal.App.4th at p. 1091.)
In January 2015, when defendant filed his petition, section 1170.18, subdivision (a), provided: “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 under 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 in accordance with Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amended or added by this act.”
Also in January 2015, section 1170.18, subdivision (f) provided, and still provides, that: “A person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application . . . to have the felony conviction or convictions designated as misdemeanors.” (Italics added.) If the application or petition satisfies the criteria of subdivision (f), the court is required to designate the subject felony offense or offenses as misdemeanors. (§ 1170.18, subd. (g).)
Section 496 makes it a criminal offense to buy or receive “any property that has been stolen or that has been obtained in any manner constituting theft or extortion . . . .” (§ 496, subd, (a), italics added.) As amended by Proposition 47, section 496 provides that buying or receiving stolen property “shall be a misdemeanor” if the value of the property in question does not exceed $950, unless the person who committed the offense has a disqualifying prior conviction. (Ibid.) Before its amendment by Proposition 47, section 496 gave the prosecution the discretion to charge the offense as either a misdemeanor or a felony if the value of the property in question did not exceed $950. (Former § 496, eff. Oct. 1, 2011-Nov. 4, 2014.) Thus, Proposition 47 converted the offense of buying or receiving stolen property worth $950 or less from a wobbler to a misdemeanor, unless the person who committed the offense has a disqualifying prior conviction.
Proposition 47 did not amend section 496d, the section under which defendant pled guilty and was convicted in 2002. Specifically, he was convicted of receiving the stolen 1992 white Jeep Wrangler in 2001 as referred to in the information. Section 496d, subdivision (a) 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 . . .” is guilty of either a misdemeanor or felony. Thus, both before and after the voters enacted Proposition 47, the purchase or receipt of a stolen vehicle in violation of section 496d was and remains a wobbler offense, chargeable and punishable either as a felony or a misdemeanor, regardless of the value of the stolen vehicle in question.
By his petition, defendant asked the court to designate his 2002 felony conviction for violating section 496d to an unspecified misdemeanor conviction. To be entitled to this relief, defendant had to show he “would have been guilty of a misdemeanor” (§ 1170.18, subd. (f)) had Proposition 47 been in effect in 2001, when he committed the section 496d violation (People v. Sherow (2015) 239 Cal.App.4th 875, 879-880 [defendant has initial burden of making prima facie evidentiary showing of entitlement to Proposition 47 relief]; People v. Pak (2016) 3 Cal.App.5th 1111, 1117).
As discussed, however, Proposition 47 did not amend section 496d. Both before and after Proposition 47 was enacted, buying or receiving a stolen vehicle was and still is a wobbler, chargeable as either a felony or a misdemeanor, regardless of the value of the stolen vehicle in question. (§ 496d.) Thus here, defendant did not show and could not show that his felony conviction for violating section 496d “would have been a misdemeanor” had Proposition 47 been in effect when he committed the offense in 2001. (§ 1170.18, subd. (f).) For this reason, the petition was properly denied.
Defendant maintains that a felony conviction for violating section 496d “should be included in the class of offenses that may be redesignated to a misdemeanor under section 1170.18.” Defendant points out that uncodified provisions of Proposition 47, namely, sections 15 and 18, which were before the voters in the Voter Information Guide when Proposition 47 was enacted, state that Proposition 47 was to be “broadly” or “liberally” construed to “accomplish” or “effectuate” its purposes. (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of proposed laws, p. 74<http://vig.cdn.sos.ca. gov/2014/general/pdf/complete-vig.pdf>[as of May 3, 2017].) In order to accomplish or effectuate voters’ intent in enacting Proposition 47, defendant argues that “the inclusive language” of section 490.2, which was added to the Penal Code by Proposition 47, “should be read to include” section 496d.
Section 490.2, subdivision (a) states: “Notwithstanding Section 487 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” unless the person has a prior conviction for a disqualifying offense. (Italics added.) Defendant argues that the italicized phrases, or “any other provision of law” and “obtaining any property by theft” would be rendered meaningless, or “mere surplusage,” unless section 490.2 is construed as including section 496d violations.
This argument misconstrues the plain language of section 490.2. As Varner explained: “Defendant’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 Proposition 47 intended to include section 496d. Section 490.2 . . . 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: ‘Notwithstanding 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.) The 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 discretion to charge section 496d offenses as felonies. . . . The trial court did not err by concluding defendant was ineligible for resentencing based on his conviction of section 496d.” (Varner, supra, 3 Cal.App.5th at p. 367.)
Likewise, the uncodified provisions of Proposition 47, sections 15 and 18, which provided that Proposition 47 is to be broadly construed to effect its purposes, do not require us to construe section 1170.18 as applying to section 496d. As Varner observed: “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 conform to some assumed intent not apparent from that language.’ [Citation.]” (Varner, supra, 3 Cal.App.5th at pp. 366-367.)
Further, the rule of lenity, which defendant invokes, does not compel a different result. The rule of lenity requires courts to construe ambiguous criminal statutes in favor of the defendant, but applies only if “‘the court can do no more than guess what the legislative body [or here, the voters] intended’” in enacting the statute. (People v. Avery (2002) 27 Cal.4th 49, 58.) The language of sections 490.2 and 1170.18 is plain and unambiguous, and in enacting these statutes as part of Proposition 47, it is apparent that the voters did not intend to include section 496d convictions within their scope.
B. The Denial of the Petition Did Not Violate Defendant’s Right to Equal Protection
Defendant claims the denial of his petition violated his right to equal protection of the laws. He reasons that, under Proposition 47, a person with a felony conviction for receiving stolen property worth $950 or less (§ 496, subd. (a)) is entitled to have his or her conviction designated as a misdemeanor, while a person with a felony conviction for receiving a stolen vehicle worth $950 or less may not.
Defendant argues he is similarly situated to a person who received stolen property worth $950 or less (§ 496, subd. (a)), though he made no showing that the value of the vehicle in question, the 1992 white Jeep Wrangler, was worth $950 or less when he unlawfully purchased or received it in 2001. (§ 496d.) Assuming that the value of the vehicle was $950 or less, defendant has not demonstrated an equal protection violation.
As observed in Varner: “‘“The United States and California 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 circumstances.’ [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.’ [Citation.] 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 classification is upheld unless it bears no rational relationship to a legitimate state purpose.”’ (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 designation a particular crime receives.”’ Accordingly, the rational basis test is applicable to an equal protection challenge involving an alleged sentencing disparity. (Ibid.) It additionally found, ‘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.’ (Ibid.) 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 denied only where there is no ‘rational relationship between the disparity of treatment and some 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.’ (Ibid.) ‘If a plausible basis exists for the disparity, courts may not second-guess its “‘wisdom, fairness, or logic.’”’ (Ibid.)” (Varner, supra, 3 Cal.App.5th at p. 368.)
In enacting Proposition 47, the voters had plausible reasons to treat section 496 and 496d violations differently. For example, the vehicle owners may rely on their vehicles for numerous necessities of life, including transportation to work and to doctor’s appointments. Vehicle theft thus has a particular insidious effect on the ability of ordinary people to conduct their lives. The Legislature explicitly added section 496d to the Penal Code in order to “target persons involved in the business of vehicle theft” and in order to provide “additional tools to law enforcement for utilization in combating vehicle theft and prosecuting vehicle thieves.” (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.)
Another plausible reason for excluding a section 496d conviction from qualifying for resentencing or reduction to misdemeanors under Proposition 47 is to maintain prosecutorial discretion to charge a section 496d offense as a felony or a misdemeanor. As our state Supreme Court has observed: “[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. [Citation.]” (People v. Wilkinson (2004) 33 Cal.4th 821, 838-839.) Because there are plausible reasons for distinguishing between purchase or receipt of stolen vehicles, under section 496d, subdivision (a), and the purchase or receipt of stolen property, under section 496, subdivision (a), defendant has not shown that the denial of his petition violated his right to equal protection of the laws.
IV. DISPOSITION
The order denying defendant’s Proposition 47 petition is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS
J.


We concur:

RAMIREZ
P. J.

MILLER
J.