P. v. Baughman

Filed 3/10/17 P. v. Baughman CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
RANDEL WAYANE BAUGHMAN, JR.,
Defendant and Appellant.
F071518
(Super. Ct. No. 1463111)
OPINION
THE COURT*
APPEAL from an order of the Superior Court of Stanislaus County. Scott T.
Steffen, Judge.
Michael Satris, 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, Daniel B. Bernstein and
Alice Su, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Kane, Acting P.J., Poochigian, J. and Peña, J.

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2.
Appellant Randel Wayane Baughman, Jr., appeals from the denial of his petition
for resentencing under Penal Code section 1170.18, seeking modification of the sentence
imposed on his prior conviction for unlawfully driving or taking a vehicle (Veh. Code,
§ 10851).1 Appellant contends that his conviction under section 10851 is eligible for
resentencing under Proposition 47 and that the denial of his request violates principles of
equal protection. For the reasons set forth below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On or around October 30, 2013, appellant pled nolo contendere to unlawfully
driving or taking a vehicle under section 10851 and admitted to an enhancement for a
prior theft conviction. In exchange, two related charges were dismissed and appellant
received a four-year sentence.
Appellant’s arrest originated from a call to 911 placed by a citizen concerned
about possible drunk driving. When police arrived to investigate the call, they found the
suspect vehicle was reported as stolen. Appellant, who had been identified as the
suspected drunk driver by a witness who saw him exit the vehicle with a gas can, was
arrested in a nearby store and found in possession of gloves, a screwdriver, pliers, and
pictures of the victim’s family that had been in the car when it was stolen.
On or around December 1, 2014, appellant filed a petition for a writ of habeas
corpus, seeking resentencing under Proposition 47. The writ was treated as a petition for
resentencing. The People opposed the petition, both informally and formally, on the
ground a conviction under section 10851 is not eligible for resentencing. Appellant was
provided a public defender, who argued appellant was statutorily eligible. The trial court
denied appellant’s petition.
This appeal timely followed.
1 All statutory references are to the Vehicle Code unless otherwise noted.

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3.
DISCUSSION
Appellant argues that a violation of section 10851 is a theft offense, subject to
resentencing under Penal Code section 1170.18. Appellant further argues that treating a
conviction for theft of an automobile under section 10851 as a felony while other similar
property thefts are treated as misdemeanors under Penal Code section 490.2 would create
constitutional difficulties by violating 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 In Sauceda we held that section 10851 is not
affected by the changes enacted through Proposition 47 and that no equal protection
violation arises from the different potential punishments for, or the failure to grant
retroactive sentencing relief to, those convicted under section 10851. (Sauceda, supra, at
pp. 644-650.) We see no reason to depart from those rulings here.
Related to these arguments, appellant also contends that a conviction under
section 10851 must be eligible for resentencing because it is a lesser included offense to
grand theft auto, which is eligible for resentencing when the value of the vehicle is less
than $950. We do not agree. As explained in Sauceda, a conviction under section 10851
does not require an explicit determination of intent to steal. (Sauceda, supra, 3
Cal.App.5th at pp. 643, 644-646.) Thus, evidence of theft is unnecessary to satisfy the
elements needed for conviction. The fact that, in some limited circumstances, section
10851 can serve as a lesser included offense to theft of an automobile (whether grand or
petty theft under Proposition 47), does not change the fact that the ultimate conviction is
not necessarily for a theft offense. Because section 10851 is not by its nature a theft
offense, its exclusion from Proposition 47 confirms there was no intent to modify the
2 Effective July 1, 2016, California Rules of Court, rule 8.1115(e)(1) was amended
to provide that a published opinion of a Court of Appeal has no binding or precedential
effect once the matter is pending review in the Supreme Court and “may be cited for
potentially persuasive value only.”

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4.
punishment scheme separately set forth for the crime of unlawfully driving or taking a
vehicle.
DISPOSITION
The order is affirmed.

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