P. v. Allison

Filed 1/25/17 P. v. Allison 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
SEAN PATRICK ALLISON,
Defendant and Appellant.
H043417
(Santa Cruz County
Super. Ct. No. F23073)
After the electorate approved Proposition 47 in November 2014, defendant Sean
Patrick Allison filed a petition to reduce his conviction for unlawful driving or taking 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 section 10851 can be
reduced to a misdemeanor under Proposition 47.2 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 in People v.
Page (2015) 241 Cal.App.4th 714, review granted January 27, 2016, S230793.

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I. Statement of the Case
In November 2012, defendant pleaded no contest to unlawful driving or taking of
a vehicle (§ 10851, subd. (a) - count 1), possession of a controlled substance (Health &
Saf. Code, § 11350, subd. (a) - count 2), driving under the influence of alcohol or drugs
(§ 23152, subd. (a) - count 3), and reckless driving (§ 23103, subd. (a) - count 4). He
also admitted that he had served two prior prison terms (Pen. Code, § 667.5) and had
suffered a prior strike conviction (Pen. Code, § 667, subds. (b)-(i)). The trial court
sentenced defendant to prison for a total term of two years and eight months.
In January 2016, defendant filed a petition for resentencing. The trial court denied
the petition.
II. Statement of Facts
At 1:26 p.m. on July 14, 2012, police officers were dispatched based on a report of
a reckless or intoxicated driver. The witness stated that the driver had been stopped in
the middle of a lane and then drove a 1996 Honda Accord car into oncoming traffic. The
driver subsequently drove into a parking lot and struck a stopping block with such force
that the vehicle appeared to lift off the ground. When police officers arrived, defendant
was slouched over the driver’s seat and displayed signs of intoxication. The ignition to
the Honda had been tampered with. Adan Zepeda did not know defendant and he had not
given defendant permission to take his vehicle. Defendant was also in possession of
opium alkaloids.
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

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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.” (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.”
“[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

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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.
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 487 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.” (Pen. Code, § 490.2.) Section 10851 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 argues that since Proposition 47 amended Penal Code section 666,
which contains references to section 10851 as “auto theft,” all violations of section 10851
are “theft” as defined in Penal Code section 490.2. However, Proposition 47 did not
categorize all violations of section 10851 as thefts. Proposition 47 restated language in
Penal Code section 666, which provided that prior convictions for certain offenses
including “auto thefts under Section 10851 of the Vehicle Code” could be used as a
predicate to charge a felony offense. (Ballot Pamp., Gen. Elec. (Nov. 4, 2014), text of
Prop. 47, p. 72.) Nothing in this amendment purported to recharacterize all violations of
section 10851 as thefts.

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Defendant next claims that construing Penal Code section 490.2 to apply to
section 10851 violations would effectuate the voters’ intent “ ‘to maximize alternatives
for nonserious, nonviolent crimes.’ ” He maintains that “[t]here is nothing inherent to
vehicle thefts worth less than $950 that makes those thefts more serious or violent than
thefts of any other property worth less than $950.” The facts of the present case refute
this claim. Here, defendant stopped the stolen vehicle in the middle of a lane, then drove
his vehicle into oncoming traffic, and later struck a stopping block with such force that
the vehicle appeared to lift off the ground. Thus, the taking of a vehicle is different from
other thefts because it can lead to property damage, serious injury, or death.
Defendant also argues that excluding section 10851 from relief under Proposition
47 “would create an anomaly, unintended by the voters.” He points out that if he had
been convicted of a violation of Penal Code section 487, subdivision (d)(1) based on the
same conduct, he would be eligible for reduction of the offense to a misdemeanor. He
points out that since he was convicted of a felony for violating section 10851, he is not
eligible for such a reduction. Our interpretation of Proposition 47 is not anomalous.
Under certain circumstances, the taking of a vehicle in violation of section 10851 is more
serious than the theft of a vehicle in violation of Penal Code section 487, subdivision (d).
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. Defendant claims that “[a]ny argument that convictions for vehicle
theft under . . . section 10851 are more serious or harmful than vehicle thefts under [Penal
Code] section 487, subdivision (d)(1) are undercut by the fact that . . . section 10851 is a
lesser included offense of the offense defined in subdivision (d)(1) of [Penal Code]
section 487.”

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“ ‘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.]” (People v.
Wilkinson (2004) 33 Cal.4th 821, 836-837 (Wilkinson).)
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. The court
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.)

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Here, there is a rational basis for the distinction in treatment between Penal Code
section 487 and section 10851 under Proposition 47. The electorate could have rationally
concluded that the omission of section 10851 in Proposition 47 allowed for prosecutorial
discretion in charging certain vehicle takings as felonies based on the defendant’s
background, the severity of the crime, and other factors. (Wilkinson, supra, 33 Cal.4th at
pp. 838-839.) As previously stated, the present case is an example of a violation of
section 10851 that warrants felony status. Thus, there was no violation of defendant’s
equal protection rights.
IV. Disposition
The order is affirmed.

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_______________________________
Mihara, J.
WE CONCUR:
______________________________
Elia, Acting P. J.
______________________________
Bamattre-Manoukian, J.
People v. Allison
H043417

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