Filed 8/15/17 P. v. Mansanalez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Hilary A. Chittick, Judge.

Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant Fabian Mansanalez stands convicted of receiving a stolen vehicle, a violation of Penal Code[1] section 496d, subdivision (a), and being a felon in possession of a firearm, in violation of section 29800, subdivision (a)(1). He also admitted two prior prison term enhancements pursuant to section 667.5, subdivision (b). Mansanalez contends his conviction for violating section 496d should be reduced to a misdemeanor, pursuant to section 1170.18. We disagree and affirm.

FACTUAL AND PROCEDURAL SUMMARY

We provide an abbreviated recitation of only those facts pertinent to the issue on appeal. On May 8, 2014, Alejandra Garcia notified authorities her gray GMC truck with special rims had been stolen. That same day, Mansanalez told his sister and her fiancé, Adrian Aceves, that he wanted to sell some rims from a truck.

Mansanalez and Aceves met up with Jose Canas, who was going to buy the rims. As the rims were being removed from the truck, a man identified as George Salwasser, Jr., drove up; he ordered the men not to move and stated he was calling the police. As Aceves ran away, he heard shots being fired. Salwasser was killed.

Mansanalez subsequently was arrested. After his arrest, he was interviewed by Detective Mark Chapman; the interview was recorded. In the interview, Mansanalez admitted he had a drug problem and had stolen Garcia’s GMC truck.

The stolen truck was recovered, but it had been damaged. The truck’s stereo was damaged and other items in the vehicle had been removed.

Mansanalez was charged with, but acquitted of, Salwasser’s murder. A jury convicted Mansanalez of one count of violating section 496d, subdivision (a), receiving a stolen vehicle, and one count of violating section 29800, subdivision (a)(1), being a felon in possession of a firearm. It was alleged that Mansanalez had served two prior prison terms for violations of sections 243, subdivision (d), battery, and 496d. He admitted serving two prior prison terms within the meaning of section 667.5, subdivision (b). The trial court sentenced Mansanalez to a total term of six years in prison. On October 21, 2015, Mansanalez filed a notice of appeal.

DISCUSSION

Mansanalez contends that his conviction for violating section 496d is eligible for treatment as a misdemeanor under section 1170.18, in that he has no disqualifying prior convictions; there is no evidence the value of the GMC truck exceeded $950; and a violation of section 496d should be treated the same as a section 490.2 theft offense. We disagree.

I.Proposition 47

“In November 2014, California voters enacted Proposition 47, which ‘created a new resentencing provision: section 1170.18. Under section 1170.18, a person “currently serving” a felony sentence for an offence that is now a misdemeanor under Proposition 47, may petition for a recall of that sentence and request resentencing in accordance with the statutes that were added or amended by Proposition 47. [Citation.] A person who satisfies the criteria in section 1170.18 shall have his or her sentence recalled and be “resentenced to a misdemeanor … unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.” ’ ” (People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 448.)

Section 1170.18, subdivision (f) permits those who had been convicted of a felony, but would have been convicted of a misdemeanor had Proposition 47 been in effect at the time of the conviction, to petition the trial court to have the felony designated a misdemeanor. The crimes which were reclassified as misdemeanors by Proposition 47 are: (1) possession of certain controlled substances as provided for in Health and Safety Code sections 11350, 11357, and 11377; (2) shoplifting, as codified in section 459.5; (3) forgery in an amount less than $950, as codified in section 473; (4) issuing bad checks in an amount less than $950, as codified in section 476a; (5) petty theft with a prior where the amount taken is valued at less than $950, as codified in section 490.2; (6) receiving stolen property with a value of less than $950, as codified in section 496; and (7) certain convictions for petty theft with a prior pursuant to the provisions of section 666. (§ 1170.18, subd. (a).) The trial court is tasked with determining whether a petitioner is eligible for resentencing. (§ 1170.18, subd. (b).)

As an initial matter, this case is properly disposed of on jurisdictional grounds. Mansanalez does not contend he filed any petition in the superior court for reduction of the section 496d conviction to a misdemeanor, or for resentencing in accordance with section 1170.18, nor have we found any such petition in the record on appeal. Under section 1170.18, Mansanalez must first petition the superior court for relief. (People v. Diaz (2015) 238 Cal.App.4th 1323, 1331-1332.)

Regardless of the procedural and jurisdictional defects in Mansanalez’s attempt to seek relief from this court, his contention lacks merit.

II.Section 496d Offenses Not Eligible

Mansanalez’s conviction for violating section 496d is not eligible for relief under

section 1170.18, as it has not been reduced to a misdemeanor by any of the provisions of Proposition 47. (§ 1170.18, subd. (a).) Any petition he would file should, therefore, be denied.

Mansanalez argues, however, rules of statutory interpretation and the clear legislative intent behind Proposition 47 show that section 496d is eligible for resentencing under sections 1170.18 and 490.2. In addition, he argues that treating a section 496d offense as a felony while other similar property thefts are treated as misdemeanors under section 490.2 violates equal protection principles.

We have previously addressed both issues in People v. Sauceda (2016) 3 Cal.App.5th 635 (Sauceda), review granted November 30, 2016, S237975.[2] We held in Sauceda that Vehicle Code section 10851 is not affected by the changes enacted through Proposition 47, and no equal protection violation arises from the different potential punishments for, or the failure to grant retroactive sentencing relief to, those convicted under Vehicle Code section 10851. (Sauceda, at pp. 644-650.) We see no reason to depart from this ruling here, when the principle is the same; an offense not listed in section 1170.18, subdivision (a), is not eligible for relief.

Like its Vehicle Code counterpart, section 496d also does not require theft because it proscribes a class of crimes involving the receipt or the purchase of a vehicle knowing it was stolen. Sauceda further held the voters did not intend to modify Vehicle Code section 10851. (Sauceda, supra, 3 Cal.App.5th at pp. 652-654, citing People v. Wilkinson (2004) 33 Cal.4th 821, 838 (Wilkinson).) By parity of reasoning, we find our decision in Sauceda persuasive and that its reasoning should apply to section 496d as well as its Vehicle Code counterpart.

The court in People v. Varner (2016) 3 Cal.App.5th 360, 366-367 (Varner), review granted November 22, 2016, S237679, held sections 490.2 and 1170.18, enacted by Proposition 47, did not affect the eligibility of defendants convicted under section 496d for resentencing because the newly enacted sentencing statutes did not include section 496d even though they expressly included section 496. If a defendant’s acquisition of a vehicle in violation of section 496d was of property valued at less than $950, he or she is not entitled to resentencing pursuant to section 1170.18. (Varner, at p. 370, fn. 4.)

As did our court in Sauceda, Varner further held the equal protection clause did not apply simply because the prosecutor could have prosecuted the defendant under section 496, which is subject to Proposition 47, rather than section 496d, a statute not subject to the proposition’s resentencing provisions. Citing Wilkinson, supra, 33 Cal.4th at page 838, Varner found neither the existence of two identical criminal statutes prescribing different levels of punishments nor the exercise of the prosecutor’s discretion in charging one statute but not the other violates equal protection. Varner noted our Supreme Court has applied the rational basis test where there is a disputed statutory disparity that does not implicate class or a fundamental right. (Varner, supra, 3 Cal.App.5th at p. 368.) Varner held there was a rational basis for treating punishment differently under sections 496 and 496d. The Legislature has the discretion to proceed in an incremental and uneven manner without engaging in arbitrary or unlawful discrimination. (Varner, at pp. 369-370.)

We find the reasoning in Sauceda and Varner persuasive.

DISPOSITION

The judgment is affirmed.