P. v. Gonzales

Filed 6/30/16 P. v. Gonzales 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 ordered 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.
FRANK ALEX GONZALES,
Defendant and Appellant.
H042040
(Santa Clara County
Super. Ct. No. C1371872)
After the electorate approved Proposition 47 in November 2014, defendant Frank
Alex Gonzales brought a petition to reduce his conviction for theft or unauthorized use of
a vehicle (Veh. Code, § 10851)1 to a misdemeanor and be resentenced accordingly. The
trial court denied the petition. On appeal, defendant contends that the voters intended
that Proposition 47 would apply to violations of section 10851.2 He also contends that
his felony conviction violates his right to equal protection. We affirm the order.
1 All further statutory references are to the Vehicle Code unless otherwise stated.
2 The issue of whether Proposition 47 applies to the offense of theft or unauthorized
use of a vehicle (§ 10851) is currently before the California Supreme Court. (People v.
Page (2015) 241 Cal.App.4th 714, review granted Jan. 27, 2016, S230793.)

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I. Statement of the Case
Pursuant to a negotiated agreement in February 2014, defendant pleaded no
contest to theft or unauthorized use of a vehicle (§ 10851, subd. (a)), reckless driving in
an attempt to elude a pursuing peace officer (§ 2800.2, subd. (a)), and resisting a peace
officer in the performance of his duties (Pen. Code, § 148, subd. (a)(1)). Defendant also
admitted that he had a prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12)
and had served a prior prison term (Pen. Code, § 667.5, subd. (b)). The trial court
sentenced defendant to 32 months in state prison.
In January 2015, defendant filed a petition for resentencing pursuant to Penal
Code section 1170.18. The trial court denied the petition.
II. Statement of Facts
The complaint alleged: “[o]n or about December 22, 2013, . . . [defendant] . . . did
drive and take a vehicle, a Honda Civic . . . belonging to Ray Bianchi, without the
consent of the owner and with the intent to deprive the owner of title to and possession of
the vehicle.” The value of the vehicle was neither alleged in the complaint nor
established in the underlying proceedings.
III. Discussion
Proposition 47 established procedures for petitions for reduced sentences for
specified nonserious and nonviolent property and drug crimes by adding Penal Code
section 1170.18. This statute provides in relevant part: “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

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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.” (Pen. Code, § 1170.18, subd. (a).)
Penal Code section 1170.18, subdivision (b) provides that a court that receives such a
petition shall resentence the petitioner “unless the court, in its discretion, determines that
resentencing the petitioner would pose an unreasonable risk of danger to public safety.”
Though Penal Code section 1170.18 does not specifically refer to section 10851,
defendant argues that “the voters of California intended that violations of Vehicle Code
section 10851 be included in the reforms of Proposition 47.” (Capitalization omitted.)
“[O]ur interpretation of a ballot initiative is governed by the same rules that apply
in construing a statute enacted by the Legislature. [Citations.] We therefore first look to
‘the language of the statute, affording the words their ordinary and usual meaning and
viewing them in their statutory context.’ [Citations.]” (People v. Park (2013) 56 Cal.4th
782, 796.) “ ‘ “When statutory language is clear and unambiguous, there is no need for
construction and courts should not indulge in it.” [Citation.]’ [Citation.]” (People v.
Hendrix (1997) 16 Cal.4th 508, 512.)
Penal Code section 1170.18, subdivision (a) does not identify section 10851 as one
of the code sections amended or added by Proposition 47. Moreover, Proposition 47 did
not amend language in section 10851, subdivision (a), which provides that a violation of
the statute is punishable as either a felony or a misdemeanor. Defendant, however,
focuses on Proposition 47’s addition of Penal Code section 490.2, which states in
relevant part: “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 . . . .” (Pen. Code,
§ 490.2, subd. (a).) Defendant argues that Penal Code section 490.2 broadens the scope
of petty theft to include a violation of section 10851.

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Defendant’s statutory interpretation is not persuasive. Penal Code section 490.2
amends the definition of grand theft, as set forth in Penal Code section 4873 or any other
provision of law, to include certain offenses that would have previously been grand theft
to be petty theft. However, section 10851 is not included in Penal Code section 490.2, as
Penal Code section 487 is. Nor can section 10851 be considered “any other provision of
law defining grand theft.” Section 108514 does not define the taking of a vehicle as
grand theft and is much broader than statutes that prohibit theft. A theft is committed
only if the defendant intends to permanently deprive the owner of his or her property
(People v. Abilez (2007) 41 Cal.4th 472, 510), while a defendant can violate section
10851 if he or she either takes a vehicle with intent to steal it or by driving it with the
intent only to temporarily deprive the owner of its possession. (People v. Garza (2005)
35 Cal.4th 866, 871.) Thus, Penal Code section 490.2 does not apply to defendant’s
conviction.
Defendant also argues “that the violation of Vehicle Code section 10851 – a lesser
included offense of Penal Code section 487 – may result in a felony prison sentence,
while a violation of the more serious offense may result in a conviction for a
misdemeanor.” Thus, he asserts that the voters could not have intended this result.
However, though a lesser included offense has fewer statutory elements than the greater
offense, it is not necessarily less serious. (See People v. Wilkinson (2004) 33 Cal.4th
821, 839 (Wilkinson).)
3 Penal Code section 487 defines grand theft based on the value or type of property.
Subdivision (d)(1) of this statute refers to an automobile worth $950 or more. (Pen.
Code, § 487, subd. (d)(1).)
4 Section 10851, subdivision (a) provides in relevant part: “Any person who drives
or takes a vehicle not his or her own, without the consent of the owner thereof, and with
intent either to permanently or temporarily deprive the owner thereof of his or her title to
or possession of the vehicle, whether with or without intent to steal the vehicle, or any
person who is a party or an accessory to or an accomplice in the driving or unauthorized
taking or stealing, is guilty of a public offense and, upon conviction thereof, shall be
punished . . . .”

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Even assuming that a conviction under section 10851 falls within the purview of
Penal Code section 490.2 based on a showing of the circumstances underlying the
conviction, defendant failed to make a threshold prima facie showing of entitlement to
relief. It was defendant’s burden to present a legally sufficient petition that established
his eligibility for resentencing under Proposition 47. (See Pen. Code, § 1170.18,
subds. (a), (b); People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 449-450.) Here, there
is nothing in the petition or record regarding the value of the vehicle.
Alternatively, defendant contends that it would violate his right to equal protection
to interpret Penal Code section 490.2 to reduce vehicle theft violations under Penal Code
section 487, subdivision (d)(1) to misdemeanors while leaving violations of section
10851 as felonies.
“ ‘Broadly stated, equal protection of the laws means “that no person or class of
persons shall be denied the same protection of the laws [that] is enjoyed by other persons
or other classes in like circumstances in their lives, liberty and property and in their
pursuit of happiness.” [Citation.]’ [Citation.] . . . [A] threshold requirement of any
meritorious equal protection claim ‘is a showing that the state has adopted a classification
that affects two or more similarly situated groups in an unequal manner. [Citation.]’
[Citation.]” (People v. Guzman (2005) 35 Cal.4th 577, 591-592.)
“ ‘In considering whether state legislation violates the Equal Protection Clause of
the Fourteenth Amendment . . . we apply different levels of scrutiny to different types of
classifications. At a minimum, a statutory classification must be rationally related to a
legitimate governmental purpose. [Citations.] Classifications based on race or national
origin . . . and classifications affecting fundamental rights . . . are given the most exacting
scrutiny. Between these extremes of rational basis review and strict scrutiny lies a level
of intermediate scrutiny, which generally has been applied to discriminatory
classifications based on sex or illegitimacy. [Citations.]’ [Citations.]” (Wilkinson,
supra, 33 Cal.4th at p. 836.)

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Even assuming that defendant could satisfy the similarly-situated requirement, his
equal protection claim fails. In Wilkinson, supra, 33 Cal.4th 821, the defendant argued
that his convictions of battery on a custodial officer violated equal protection, because
statutes authorized greater punishment for battery on a custodial officer without injury
than for battery on a custodial officer with injury. (Id. at p. 832.) In applying the rational
basis test, the California Supreme Court rejected the defendant’s challenge. Wilkinson
stated that “neither the existence of two identical criminal statutes prescribing different
levels of punishment, nor the exercise of a prosecutor’s discretion in charging under one
such statute and not the other, violates equal protection principles.” (Id. at p. 838.) The
issue before us was considered in People v. Johnston (2016) 247 Cal.App.4th 252
(Johnston). Johnston found a rational basis for the electorate’s distinction in treatment
between Penal Code section 487 and section 10851 under Proposition 47: “The
electorate was not obligated to extend relief under the initiative to all similar conduct. It
could instead move in an incremental way, gauging the effects of this sea change in penal
law. Particularly given the insignificant numbers of vehicle thefts at issue in light of the
present vehicle prices, the electorate could conclude this would not work an injustice.”
(Johnston, at p. 259.) We agree with the reasoning in Johnston.
Relying on People v. Olivas (1976) 17 Cal.3d 236, defendant contends that the
present case involves a fundamental liberty interest and thus a compelling state interest
must be shown to justify the omission of section 10851 from the reach of Proposition 47.
Wilkinson, supra, 33 Cal.4th 821 rejected this interpretation of Olivas: “The language in
Olivas could be interpreted to 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.” (Wilkinson, at p. 837.) As previously stated, Wilkinson

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concluded the appropriate standard for such sentencing disparities was the rational basis
standard. (Id. at p. 838.)
IV. Disposition
The order is affirmed.

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_______________________________
Mihara, J.
WE CONCUR:
______________________________
Elia, Acting P. J.
______________________________
Bamattre-Manoukian, J.
People v. Gonzales
H042040

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