P. v. Mahoney

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Filed 2/28/17 P. v. Mahoney 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
SEAN PATRICK MAHONEY,
Defendant and Appellant.
E065891
(Super.Ct.No. FVI1102874)
OPINION
APPEAL from the Superior Court of San Bernardino County. John P.
Vander Feer, Judge. Affirmed.
Donna L. Harris, 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, Peter Quon, Jr., and Anthony
Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant and appellant Sean Patrick Mahoney appeals from the trial court’s
denial of his petition under Penal Code section 1170.18 to have his felony conviction for
driving or taking a vehicle under Vehicle Code section 10851, subdivision (a), reduced to
a misdemeanor. We affirm.
FACTS AND PROCEDURE
On December 14, 2011, defendant drove or took a 1992 Honda Prelude. He was
previously convicted of driving or taking a vehicle in 1995.
On December 22, 2011, the People filed a felony complaint charging defendant in
count 1 with receiving a stolen motor vehicle (Pen. Code, § 496d, subd. (a)) and in count
2 with unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)). The
People alleged as to both counts that defendant had a prior conviction for Vehicle Code
Section 10851, subdivision (a), and that defendant had eight prison term priors (Pen.
Code, § 667.5, subd. (b)).
On January 3, 2012, defendant pled no contest to count 2 and admitted the prior
conviction for unlawfully driving or taking a vehicle. As agreed, the court dismissed
count 1 and struck the eight prison term priors. Also as agreed, the court sentenced
defendant to the middle term of three years in county prison.
On March 10, 2016, defendant filed a petition for resentencing asking to have his
conviction for taking or driving a vehicle reduced to a misdemeanor. Also on that date,
the People filed a response, arguing that Vehicle Code section “10851 is not affected by
Prop. 47.” After a hearing held on April 15, 2016, the trial court denied the petition.

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During the hearing, defense counsel indicated that “this was a 1992 Honda Prelude, and
according to Kelley Blue Book the value of the vehicle would be approximately $706.”1
This appeal followed.
DISCUSSION
Defendant contends that a violation of Vehicle Code section 10851 is a theft crime
within the scope of Proposition 47 and Penal Code section 1170.18, and thus the trial
court erred when it denied his petition. He further contends that the failure to treat a
violation of Vehicle Code section 10851 as a misdemeanor when the value of the vehicle
is less than $950 violates equal protection principles.
1. Standard of Review
When interpreting a voter initiative, “we apply the same principles that govern
statutory construction.” (People v. Rizo (2000) 22 Cal.4th 681, 685.) We first look “ ‘to
the language of the statute, giving the words their ordinary meaning.’ ” (Ibid.) We
construe the statutory language “in the context of the statute as a whole and the overall
statutory scheme.” (Ibid.) If the language is ambiguous, we look to “ ‘other indicia of
the voters’ intent, particularly the analyses and arguments contained in the official ballot
pamphlet.’ ” (Ibid.)
1 As the People point out in their responsive brief, defense counsel did not
establish or even specify whether the $706 was the stolen vehicle’s value at the time of
the hearing in 2016 or at the time of the crime in 2011. As defendant points out, the
People did not dispute the proffered value at the hearing. For the purpose of this appeal
we assume, but do not decide, that the vehicle’s value was less than $950.

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2. Overview of Proposition 47 and Penal Code Section 1170.18
On November 4, 2014, voters approved Proposition 47, the Safe Neighborhoods
and Schools Act, which went into effect the next day. (People v. Rivera (2015) 233
Cal.App.4th 1085, 1089.) Proposition 47 reduced certain drug- and theft-related crimes
from felonies or wobblers to misdemeanors for qualified defendants and added, among
other statutory provisions, Penal Code section 1170.18. Penal Code section 1170.18
creates a process through which persons previously convicted of crimes as felonies,
which would be misdemeanors under the new definitions in Proposition 47, may petition
for resentencing. (See People v. Lynall (2015) 233 Cal.App.4th 1102, 1108-1109.)
Specifically, Penal Code section 1170.18, subdivision (f), provides: “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 [Proposition 47]
had [Proposition 47] been in effect at the time of the offense, may file an application
before the trial court that entered the judgment of conviction in his or her case to have the
felony conviction or convictions designated as misdemeanors.”
As relevant to the present case, Proposition 47 added Penal Code section 490.2,
which provides as follows: “Notwithstanding [Penal Code] 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).)

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3. Applicability of Proposition 47 to Vehicle Code Section 10851 Offenses
Penal Code section 1170.l8, subdivision (a), lists the offenses for which relief may
be appropriate: “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.” Vehicle Code section
10851 is not one of the listed offenses. Defendant nonetheless contends that because
Vehicle Code section 10851 is a theft offense, and Penal Code section 1170.18 explicitly
applies to theft offenses through Penal Code section 490.2 when the value of the property
taken is less than $950, Penal Code section 1170.18 must also apply to violations of
Vehicle Code section 10851. That issue is presently before the California Supreme
Court. (People v. Page (2015) 241 Cal.App.4th 714, review granted Jan. 27, 2016,
S230793; People v. Gomez (2015) 243 Cal.App.4th 319, review granted May 25, 2016,
S233849; People v. Ortiz (2016) 243 Cal.App.4th 854, review granted Mar. 16, 2016,
S232344, among others.)
The crux of defendant’s argument is that Vehicle Code section 10851 was
indirectly amended by virtue of Penal Code section 490.2’s reference to Penal Code
section 487, and the circumstance that Vehicle Code section 10851 is a lesser included
offense of Penal Code section 487, subdivision (d)(1). On its face, however, Penal Code
section 490.2 does no more than amend the definition of grand theft, as articulated in
Penal Code section 487 or any other provision of law, redefining a limited subset of
offenses that would formerly have been grand theft to be petty theft. (Pen. Code,
§ 490.2.) Vehicle Code section 10851 does not proscribe theft of either the grand or petty

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variety, but rather the taking or driving of a vehicle “with or without intent to steal.”
(Veh. Code, § 10851, subd. (a); see also People v. Garza (2005) 35 Cal.4th 866, 876
[Veh. Code, § 10851, subd. (a) “ ‘proscribes a wide range of conduct,’ ” and may be
violated “ ‘either by taking a vehicle with the intent to steal it or by driving it with the
intent only to temporarily deprive its owner of possession (i.e., joyriding).’ ”].) Thus, we
conclude Penal Code section 490.2 does not apply to defendant’s conviction offense.
4. Equal Protection
Defendant also contends that equal protection principles require that his conviction
for unlawfully taking a vehicle in violation of Vehicle Code section 10851 be treated in
the same manner as a conviction for grand theft auto in violation of Penal Code section
487, subdivision (d)(1). (See fn. 1.) We disagree. Applying rational basis scrutiny, the
California Supreme Court has held that “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.” (People v. Wilkinson (2004) 33 Cal.4th 821, 838.) Similarly, it has long
been the case that “a car thief may not complain because he may have been subjected to
imprisonment for more than 10 years for grand theft of an automobile [citations] when,
under the same facts, he might have been subjected to no more than 5 years under the
provisions of section 10851 of the Vehicle Code.” (People v. Romo (1975) 14 Cal.3d
189, 197.) The same reasoning applies to Proposition 47’s provision for the possibility of
sentence reduction for a limited subset of those previously convicted of grand theft (those

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who stole an automobile or other personal property valued $950 or less), but not those
convicted of unlawfully taking or driving a vehicle in violation of Vehicle Code section
10851. Absent a showing that a particular defendant “ ‘has been singled out deliberately
for prosecution on the basis of some invidious criterion,’ . . . the defendant cannot make
out an equal protection violation.” (Wilkinson, at p. 839.) Defendant here has made no
such showing.
To be sure, “Vehicle Code section 10851 is not classified as a ‘serious felony,’ and
it is not as serious as crimes in which violence is inflicted or threatened against a person.”
(People v. Gaston (1999) 74 Cal.App.4th 310, 321.) It is not unreasonable to argue that
the same policy reasons motivating Proposition 47’s reduction in punishment for certain
felony or wobbler offenses would also apply equally well to Vehicle Code section 10851.
Nevertheless, if Proposition 47 were intended to apply not only to reduce the punishment
for certain specified offenses, but also any lesser included offenses, we would expect
some indication of that intent in the statutory language. We do not find this. The role of
the courts is not to insert changes to the Penal Code or Vehicle Code beyond those
contained in the plain language of Proposition 47.

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DISPOSITION
The order appealed from is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CUNNISON
J.
We concur:
RAMIREZ
P. J.
McKINSTER
J.
 Retired judge of the Riverside Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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