P. v. Davis

Filed 11/15/16 P. v. Davis CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
CHARLES C. DAVIS,
Defendant and Appellant.
2d Crim. No. B268034
(Super. Ct. No. MA054631-01)
(Los Angeles County)
Charles C. Davis appeals an order denying a petition
to recall and resentence his felony conviction for the unlawful
driving or taking of a vehicle with a prior similar conviction to a
misdemeanor pursuant to Proposition 47. (Pen. Code, §§ 666.5,
1170.18, subd. (a).)1 We affirm.
1 All statutory references are to the Penal Code unless
otherwise stated.

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FACTUAL AND PROCEDURAL HISTORY
On December 15, 2011, the Los Angeles County
prosecutor filed an information charging Davis with the unlawful
driving or taking of a vehicle with a prior similar conviction
(count 1), the unlawful driving or taking of a vehicle (count 2),
and receiving stolen property (count 3). (§ 666.5; Veh. Code,
§ 10851, subd. (a); § 496, subd. (a).) The prosecutor also alleged
that Davis served three prior prison terms within the meaning of
section 667.5, subdivision (b).
The charges arose from the November 16, 2011, theft
of a 1992 Honda Accord automobile owned by Marco Cruz. The
following day, Los Angeles Police Detective Mark Donnel saw
Davis sitting inside the stolen automobile which was parked near
the residence at 44384 Stanridge Avenue in Lancaster. When
Davis saw Donnel, he “laid down on the seat, across the seat, on
the passenger side.” As Donnel drove by, he checked the license
plate and confirmed that the automobile was stolen. After seeing
Donnel, Davis left the automobile and ran to the front door of the
residence. Donnel followed Davis and arrested him. The ignition
to the automobile had been drilled out and metal shavings lay on
the floorboard.
That same day, Sheriff's Deputy Jeremiah McNutt
served a search warrant on Robert Beltran, another resident of
44384 Stanridge Avenue, regarding an unrelated criminal

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matter. Beltran informed McNutt that he saw Davis drive the
stolen automobile and park it in the driveway. Beltran also
stated that a different person had stolen the automobile.
On January 18, 2012, Davis waived his constitutional
rights and pleaded nolo contendere to the unlawful driving or
taking of a vehicle with a prior similar conviction (count 1).
(§ 666.5.)2 He also admitted that he served two prior prison
terms pursuant to section 667.5, subdivision (b). In accordance
with a plea agreement, the trial court sentenced Davis to six
years in county jail, consisting of the upper term of four years for
count 1, plus two years for the prior prison term enhancements.
The court then suspended execution of sentence and granted
Davis three years of formal probation with terms and conditions,
including service of 130 days confinement in county jail and
payment of fines and fees, including a $1,200 restitution fine and
a $1,200 probation revocation restitution fine (suspended).
(§§ 1202.4, subd. (b), 1202.44.) The court awarded Davis 130
2 Section 666.5, subdivision (a) provides: “Every person
who, having been previously convicted of a felony violation of
Section 10851 of the Vehicle Code, or felony grand theft involving
an automobile in violation of subdivision (d) of Section 487 . . . , or
a felony violation of Section 496d regardless of whether or not the
person actually served a prior prison term for those offenses, is
subsequently convicted of any of these offenses shall be punished
by imprisonment pursuant to subdivision (h) of Section 1170 for
two, three, or four years, or a fine of ten thousand dollars
($10,000), or both the fine and the imprisonment.”

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days of presentence custody credit and, upon the motion of the
prosecutor, dismissed counts 2 and 3. (§ 1385. subd. (a).)
On September 4, 2015, Davis filed a petition in the
trial court requesting resentencing of his section 666.5 conviction
to a misdemeanor pursuant to Proposition 47. (§ 1170.18, subds.
(a)-(e).) Davis declared that his conviction satisfied the
resentencing requirements of section 1170.18, including the less-
than-$950 value of property taken. On November 4, 2015, the
court denied the petition, ruling that “the charge does not qualify
for Proposition 47 reduction.”
Davis appeals and contends that the trial court erred
by denying his petition because he is eligible for resentencing
pursuant to section 490.2, defining petty theft as a
misdemeanor.3
DISCUSSION
Davis argues that section 490.2 includes the crime of
vehicle theft or posttheft driving prohibited by Vehicle Code
3 Our Supreme Court is presently reviewing whether a
felony conviction for violating Vehicle Code section 10851,
subdivision (a), may be reduced to misdemeanor petty theft or
whether the defendant may be resentenced as if convicted of
misdemeanor petty theft. (People v. Page (2015) 241 Cal.App.4th
714, review granted Jan. 27, 2016, S230793; People v. Haywood
(2015) 243 Cal.App.4th 515, review granted Mar. 9, 2016,
S232250; People v. Ortiz (2016) 243 Cal.App.4th 854, review
granted Mar. 16, 2016, S232344; and People v. Solis (2016) 245
Cal.App.4th 1099, review granted June 8, 2016, S234150.)

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section 10851, subdivision (a).4 He acknowledges that section
490.2 does not expressly refer to section 10851, but asserts that
we must broadly interpret the statute to effect the voters' intent.
Davis points out that judicial decisions and secondary authorities
commonly refer to a section 10851 conviction as “vehicle theft.”
He also contends that excluding a section 10851 offense from
Proposition 47 denies him equal protection of the law.
Proposition 47 amended and enacted various
provisions of the Penal and Health and Safety Codes to reduce
certain drug and theft offenses to misdemeanors, unless
committed by ineligible defendants. Proposition 47 also enacted
section 1170.18, which creates a procedure whereby a defendant
who has suffered a felony conviction of a now reclassified crime
can petition to have it redesignated a misdemeanor.
Section 1170.18 subdivision (a) provides: “A person
currently serving a sentence for a conviction . . . of a felony . . .
who would have been guilty of a misdemeanor under the act . . .
had this act been in effect at the time of the offense may petition
for a recall of sentence . . . 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.”
4 All references to section 10851 are to Vehicle Code section
10851.

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Section 490.2, subdivision (a) provides:
“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, except that
such person may instead be punished pursuant to subdivision (h)
of Section 1170 if that person has one or more prior convictions
for an offense specified in clause (iv) of subparagraph (C) of
paragraph (2) of subdivision (e) of Section 667 or for an offense
requiring registration pursuant to subdivision (c) of Section 290.”
For several reasons, the trial court did not err by
denying the resentencing petition.
Neither section 666.5 nor section 10851 is listed in
sections 1170.18 or 490.2. Moreover, neither section was
amended by Proposition 47. At the time of Davis's conviction,
and now following Proposition 47, a violation of section 666.5 is
punished by imprisonment for two, three, or four years.
In his plea agreement, Davis admitted that pursuant
to section 666.5, he was previously convicted of an auto theft
conviction. Section 666.5 then required felony punishment for
Davis as a recidivist. Thus, he would not “have been guilty of a
misdemeanor under [Proposition 47] . . . had [Proposition 47]
been in effect at the time of the offense.” (§ 1170.18, subd. (a).)

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Moreover, section 10851 punishes vehicle theft as
well as posttheft driving (joyriding). (People v. Smith (2013) 57
Cal.4th 232, 242 [a person can violate section 10851 by either
driving or taking a vehicle]; People v. Garza (2005) 35 Cal.4th
866, 876 [unlawful driving of a vehicle is not a form of theft when
driving occurs after theft is complete].) Here the information
charged driving or taking and Davis pleaded nolo contendere to
driving or taking. The evidence contained in the preliminary
examination suggests that Davis drove, but did not take, the
Honda Accord belonging to Cruz. Section 10851 applies to theft
offenses and nontheft offenses, such as driving a vehicle without
the owner's consent and without an intent to permanently
deprive the owner of the vehicle.
We also disagree that Davis has been denied equal
protection of the law. Applying a rational basis scrutiny, our
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.) It is long settled 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

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than 5 years under the provisions of section 10851 of the Vehicle
Code.” (People v. Romo (1975) 14 Cal.3d 189, 197.)
This reasoning also applies to Proposition 47's
provisions for resentencing and reclassification of a limited
subset of those previously convicted of grand theft of property
valued $950 or less, but not for those convicted of unlawfully
taking or driving a vehicle in violation of 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." (People v. Wilkinson, supra, 33 Cal.4th 821, 839.)
Davis has not made the necessary showing, nor has he shown
that he came within the ambit of section 1170.18.
In view of our discussion, we need not discuss Davis's
contention regarding the burden of proving the value of the
vehicle taken or driven. (§ 490.2.)
The judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J. TANGEMAN, J.

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Charles A. Chung, Judge
Superior Court County of Los Angeles
______________________________
Tanya Dellaca, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A.
Engler, Chief Assistant Attorney General, Lance E. Winters,
Senior Assistant Attorney General, Mary Sanchez, Deputy
Attorney General, Ilana Herscovitz, Deputy Attorney General, for
Plaintiff and Respondent.

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