P. v. Olguin

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Filed 9/27/16 P. v. Olguin 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
CHRISTOPHER SAMUEL OLGUIN,
Defendant and Appellant.
E063459
(Super.Ct.No. FVI1203047)
O P I N I O N
APPEAL from the Superior Court of San Bernardino County. Miriam Ivy
Morton, Judge. Affirmed.
Rex Adam Williams, 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, and Charles C. Ragland and
Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.

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I. INTRODUCTION
Defendant and appellant, Christopher Samuel Olguin, pled no contest to receiving
a stolen motor vehicle (Pen. Code, § 496d, subd. (a)),1 violated probation, and was
sentenced to two years in state prison. After completing his sentence, defendant
petitioned to have his conviction redesignated a misdemeanor pursuant to Proposition 47,
which the trial court denied.
On this appeal, defendant contends the trial court erred in finding that a violation
of section 496d did not qualify for redesignation, as “[t]he broad language of Proposition
47 applies to receiving a stolen vehicle under section 496d.” Defendant also contends the
denial of his petition violated his equal protection rights. We reject both contentions and
affirm the trial court’s order denying the petition.
II. PROCEDURAL BACKGROUND
On November 21, 2012, a felony complaint in case No. FVI1203047 charged
defendant with receiving a stolen motor vehicle (Pen. Code, § 496d, subd. (a), count 1),
to wit, a 1994 Geo Metro SD, having previously been convicted of violating Vehicle
Code section 10851, subdivision (a) (Pen. Code, § 666.5). It was further alleged
defendant had served two prior prison terms. (Pen. Code, § 667.5, subd. (b).)
On December 6, 2012, defendant pled no contest to the count 1 charge of
receiving the stolen 1994 Geo Metro SD, and the prosecutor agreed to “dismiss [the]
balance of [the] complaint,” including the two prison prior allegations and the Penal Code
1 All further statutory references are to the Penal Code unless otherwise indicated.

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section 666.5 allegation that defendant had previously been convicted of violating
Vehicle Code section 10851, subdivision (a). The trial court placed defendant on
supervised probation for 36 months, with various terms and conditions, including that he
serve 180 days in county jail.
Defendant’s probation was revoked on February 1, 2013. On March 5, 2013,
defendant pled guilty in case No. FVI1300352 to corporal injury to a cohabitant (§ 273.5,
subd. (a)), and he admitted violating parole in the current case, case No. FVI1203047.
On June 24, 2013, the trial court sentenced defendant in the current case to two years in
state prison, with the sentence to be served concurrent to the two-year state prison
sentence imposed in case No. FVI1300352. Defendant received custody credits in the
current case of 150 actual days and 150 conduct days, for a total of 300 days.
On February 11, 2015, after completing his sentence, defendant filed a petition to
have his section 496d, subdivision (a) conviction redesignated as a misdemeanor under
Proposition 47. (§ 1170.18, subd. (f).) The People opposed defendant’s petition on the
ground that the “[c]onviction was for [Penal Code section] 496d[, subdivision] (a) which
is not affected by Prop[osition] 47.”
At the April 24, 2015 petition hearing, defense counsel represented to the trial
court that “[his] research . . . indicates [the 1994 Geo Metro SD] is worth $942,”2 and he
argued that “Proposition 47 is broad enough to include [section 496d, subdivision (a)].”
2 There is nothing in the record to confirm the value of the 1994 Geo Metro SD.

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The trial court denied defendant’s petition, explaining that its “reason for the denial of the
petition is that Penal Code [section] 496d is not included under Prop[osition] 47.”
III. DISCUSSION
A. Standard of Review
The construction of a ballot initiative such as Proposition 47 is a question of
statutory interpretation, which is reviewed de novo. (People v. Zeigler (2012) 211
Cal.App.4th 638, 650; Hermosa Beach Stop Oil Coalition v. City of Hermosa Beach
(2001) 86 Cal.App.4th 534, 548.) This appeal also requires us to decide whether the
principles of equal protection require defendant’s conviction for receiving a stolen motor
vehicle be redesignated a misdemeanor, a question we review de novo. (People v.
McKee (2012) 207 Cal.App.4th 1325, 1338.)
B. Overview of Proposition 47
On November 4, 2014, voters approved Proposition 47, the Safe Neighborhoods
and Schools Act, which went into effect the next day. (Cal. Const., art. II, § 10, subd. (a);
People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) “Proposition 47 makes certain
drug- and theft-related offenses misdemeanors, unless the offenses were committed by
certain ineligible defendants. These offenses had previously been designated as either
felonies or wobblers (crimes that can be punished as either felonies or misdemeanors).”
(People v. Lynall (2015) 233 Cal.App.4th 1102, 1108.) Proposition 47 amended section
496 and added, among other statutory provisions, sections 490.2 and 1170.18. (People v.

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Lynall, supra, at pp. 1108-1109.) The parties agree Proposition 47 did not specifically
amend section 496d, subdivision (a).
Under section 1170.18, subdivision (a): “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 . . . 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.” “If the petitioner satisfies the criteria in subdivision
(a), the petitioner’s felony sentence shall be recalled and the petitioner resentenced to a
misdemeanor pursuant to 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 . . . .”
(§ 1170.18, subd. (b).)
If the person seeking Proposition 47 relief has already completed his sentence, he
or she “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.” (§ 1170.18, subd. (f); People v. Diaz (2015) 238 Cal.App.4th 1323,
1329; People v. Lynall, supra, 233 Cal.App.4th at p. 1109.)
Under section 490.2, subdivision (a): “Notwithstanding Section 487 or any other
provision of law defining grand theft, obtaining any property by theft where the value of

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the . . . property taken does not exceed nine hundred fifty dollars ($950) shall be
considered petty theft and shall be punished as a misdemeanor . . . .” Under amended
section 496, subdivision (a): “Every person who buys or receives any property that has
been stolen or that has been obtained in any manner constituting theft or extortion,
knowing the property to be so stolen or obtained . . . shall be punished by imprisonment
in a county jail for not more than one year, or imprisonment pursuant to subdivision (h)
of Section 1170. However, if the value of the property does not exceed nine hundred
fifty dollars ($950), the offense shall be a misdemeanor, punishable only by
imprisonment in a county jail not exceeding one year . . . .” Under the former version of
section 496, the People had discretion to charge the offense as a misdemeanor if the value
of the stolen property did not exceed $950, and if the district attorney or grand jury
determined that charging the crime as a misdemeanor would be in the interests of justice.
(Former § 496, amended by Stats. 2011, ch. 15, § 372, p. 417.)
C. Applicability of Proposition 47 to Section 496d
As noted, defendant was sentenced to two years in state prison after pleading no
contest to violating section 496d, subdivision (a), and then subsequently violating
probation. Section 496d, subdivision (a) states, in relevant part, that “[e]very person who
buys or receives any motor vehicle . . . that has been stolen or that has been obtained in
any manner constituting theft or extortion, knowing the property to be stolen or obtained
. . . shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 for 16
months or two or three years or a fine of not more than ten thousand dollars ($10,000), or

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both, or by imprisonment in a county jail not to exceed one year or a fine of not more
than one thousand dollars ($1,000), or both.”
Although defendant concedes Proposition 47 “did not specifically amend section
496d, subdivision (a),” he asserts “the exclusion of section 496d from Proposition 47 was
an oversight,” as “[t]he broad language of Proposition 47 applies to receiving a stolen
vehicle under section 496d.” Specifically, he contends that since section 490.2’s “new
classification of theft includes theft of vehicles under section 487, subdivision (d)(1)),”
“[i]t is unreasonable to conclude the electorate intended to reclassify receiving any stolen
property valued at $950 or less, including a stolen vehicle, under section 496[,
subdivision] (a), as well as theft of such a vehicle under section 487[, subdivision] (d)(1),
but did not intend to reclassify receiving a stolen vehicle under section 496[, subdivision]
(d).” We reject defendant’s contention, as a violation of section 496d is not subject to
reclassification or redesignation under Proposition 47.
In interpreting a voter initiative such as Proposition 47, “we apply the same
principles governing statutory construction. We first consider the initiative’s language,
giving the words their ordinary meaning and construing this language in the context of
the statute and initiative as a whole. If the language is not ambiguous, we presume the
voters intended the meaning apparent from that language, and we may not add to the
statute or rewrite it to conform to some assumed intent not apparent from that language.
If the language is ambiguous, courts may consider ballot summaries and arguments in
determining the voters’ intent and understanding of a ballot measure.” (People v.

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Superior Court (Pearson) (2010) 48 Cal.4th 564, 571; see People v. Rivera, supra, 233
Cal.App.4th at p. 1100.) The long-standing rule of statutory construction is that “when
the Legislature has chosen to expressly include certain things in a statute, it means to
exclude those it has not mentioned.” (People v. Walker (2000) 85 Cal.App.4th 969, 973;
People v. Sanchez (1997) 52 Cal.App.4th 997, 1001; People v. Brun (1989) 212
Cal.App.3d 951, 954.) “‘[I]nsert[ing]’ additional language into a statute ‘violate[s] the
cardinal rule of statutory construction that courts must not add provisions to statutes.
[Citations.] This rule has been codified in California as [Code of Civil Procedure]
section 1858, which provides that a court must not “insert what has been omitted” from a
statute.’ [Citation.]” (People v. Guzman (2005) 35 Cal.4th 577, 587; accord, People v.
Harbison (2014) 230 Cal.App.4th 975, 982.) More recently, this court concluded that a
defendant is ineligible for Proposition 47 relief based on a conviction for violating
section 496d, “because section 496d is not included in section 1170.18,” and because
“there is no indication that the drafters of Proposition 47 intended to include section
496d.” (People v. Varner (Sept. 15, 2016, E063389) ___ Cal.App.5th ___ [2016 WL
4917366].)
Since section 1170.18, subdivisions (a) and (b) expressly include certain theft-
related offenses, we presume the intent of the voters, and of the Legislature, was to
exclude other theft-related offenses, such as section 496d, that were not specifically
included under Proposition 47. We do not presume, as defendant asserts, that “the
exclusion of section 496d from Proposition 47 was an oversight . . . .” To construe

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Proposition 47 as including section 496d would be inconsistent with our Supreme Court’s
instruction that we not “add to the statute or rewrite it to conform to some assumed intent
not apparent from that language.” (People v. Superior Court (Pearson), supra, 48
Cal.4th at p. 571; see People v. Guzman, supra, 35 Cal.4th at p. 587; People v. Varner,
supra, ___ Cal.App.5th ___ [2016 WL 4917366].)
Additionally, in order to be eligible for resentencing, defendant must be a person
“who would have been guilty of a misdemeanor” if Proposition 47 had been in effect at
the time of the offense. (§ 1170.18, subd. (a).) Defendant is not such a person. Although
we recognize the language, “any property,” included in section 496, subdivision (a), is
broad enough to encompass a stolen vehicle, Proposition 47 left intact the language in
section 496d that makes a violation of that statute a wobbler. (§§ 17, subds. (a), (b),
496d, subd. (a).) On the other hand, section 496, subdivision (a), as amended by
Proposition 47, now requires the district attorney to charge the crime as a misdemeanor if
the stolen property does not exceed $950.
In the instant case, Proposition 47 does not operate to reduce defendant’s sentence
because the prosecutor had the discretion to prosecute defendant’s section 496d crime as
either a felony or a misdemeanor, even after the passage of Proposition 47, and regardless
of the value of the motor vehicle. Thus, although defendant “could have been” guilty of a
misdemeanor for violating section 496d, subdivision (a) had the People elected to
prosecute the charge as a misdemeanor, defendant is not a person “who would have been

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guilty of a misdemeanor” had Proposition 47 been in effect at the time of the offense.
(§ 1170.18, subd. (a).)
Language in other portions of Proposition 47 supports this conclusion. Section
490.2, subdivision (a), which was added by Proposition 47, provides a definition of petty
theft, which begins with the phrase: “Notwithstanding Section 487 or any other provision
of law defining grand theft . . . .” Similarly, section 459.5, which was also added by
Proposition 47, provides a definition of shoplifting, which begins with the phrase:
“Notwithstanding Section 459 [burglary] . . . .” This “notwithstanding” language is
notably absent from section 496. Because section 496 contains no reference to section
496d, and since Proposition 47 did not amend section 496d to require sentencing as a
misdemeanor, it is reasonable to assume the drafters intended section 496d to remain
intact as a wobbler, with the prosecution retaining discretion to charge a section 496d
offense as either a felony or a misdemeanor. The absence of any reference in Proposition
47 to section 496d, including in the list of crimes eligible for resentencing, shows that
section 496d was intended to remain beyond Proposition 47’s reach. (See Barnhart v.
Peabody Coal Co. (2003) 537 U.S. 149, 168; see Gikas v. Zolin (1993) 6 Cal.4th 841,
852; see People v. Sanchez, supra, 52 Cal.App.4th at p. 1001.) We therefore conclude
defendant’s section 496d, subdivision (a) conviction does not qualify for redesignation
under Proposition 47.

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D. Equal Protection
Defendant next contends that, assuming Proposition 47 applied to section 496,
subdivision (a) but not to section 496d, subdivision (a), “then [Proposition 47] results in
disparate treatment in violation of the [e]qual [p]rotection clauses of the federal and
California [C]onstitutions.” Following our conclusion in People v. Varner, supra, ___
Cal.App.5th ___ [2016 WL 4917366], we reject defendant’s contention.
The Constitutions of both the United States and California guarantee equal
protection of the laws. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7, subd. (a).)
However, the California Supreme Court instructed that “[a] defendant . . . ‘does not have
a fundamental interest in a specific term of imprisonment or in the designation a
particular crime receives.’ [Citations.]” (People v. Wilkinson (2004) 33 Cal.4th 821,
838.) Therefore, the rational basis test is applicable to an equal protection challenge
involving “‘an alleged sentencing disparity.’” (Ibid.) The rational basis test also applies
to an alleged statutory disparity: “Where, as here, a disputed statutory disparity
implicates no suspect class or fundamental right, ‘equal protection of the law is denied
only where there is no “rational relationship between the disparity of treatment and some
legitimate governmental purpose.”’ [Citation.]” (Johnson v. Department of Justice
(2015) 60 Cal.4th 871, 881.)
In Johnson, the court explained that application of the rational basis standard
“‘does not depend upon whether lawmakers ever actually articulated the purpose they
sought to achieve. Nor must the underlying rationale be empirically substantiated.

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[Citation.] While the realities of the subject matter cannot be completely ignored
[citation], a court may engage in “‘rational speculation’” as to the justifications for the
legislative choice [citation]. It is immaterial for rational basis review “whether or not”
any such speculation has “a foundation in the record.”’ [Citation.] To mount a
successful rational basis challenge, a party must ‘“negative every conceivable basis”’ that
might support the disputed statutory disparity. [Citations.] If a plausible basis exists for
the disparity, courts may not second-guess its ‘“wisdom, fairness, or logic.”’
[Citations.]” (Johnson v. Department of Justice, supra, 60 Cal.4th at p. 881.)
Here, defendant argues “[i]t is irrational to grant misdemeanor treatment to those
convicted under section 496 and to deny misdemeanor treatment to those convicted under
section 496d. It seems implausible that the voters, who expressly reduced the
punishment for stealing (§ 487[, subd.] (d)(1)) or receiving (496[, subd.] (a)) a low-value
car to a misdemeanor, meant to punish receiving the same stolen car under section 496d
more severely.” However, there are plausible reasons for treating sections 496 and 496d
differently. For example, as the People maintain, “[u]nlike other forms of stolen
property, stolen vehicles are often dismantled and sold for parts in ‘chop shops’ which
can raise their worth above retail value. [Citation.] Also, owners of vehicles are
typically dependent on those vehicles for necessities, which is not frequently the case
with the theft of other forms of property. [Citation.]” (See Sen. Rules Com., Off. of Sen.
Floor Analyses, 3d reading analysis of Assem. Bill No. 2390 (1997-1998 Reg. Sess.) as
amended June 23, 1998 [“This proposal would add a section to the Penal Code to

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encompass only motor vehicles related to the receiving of stolen property. . . .”].) The
Legislature explicitly added section 496d to the Penal Code in order to provide
“additional tools to law enforcement for utilization in combating vehicle theft and
prosecuting vehicle thieves. Incarcerating vehicle thieves provides safer streets and saves
Californians millions of dollars. These proposals target persons involved in the business
of vehicle theft and would identify persons having prior felony convictions for the
receiving of stolen vehicles for enhanced sentences.” (Sen. Rules Com., Off. of Sen.
Floor Analyses, 3d reading analysis of Assem. Bill No. 2390, supra, as amended June 23,
1998.)
Another plausible reason for the disparity from excluding a section 496d
conviction from qualifying for resentencing under Proposition 47 is the probable intent
not to eliminate prosecutorial discretion to charge a section 496d offense as either a
felony or misdemeanor. Our Supreme Court has ruled that “numerous factors properly
may enter into a prosecutor’s decision to charge under one statute and not another, such
as a defendant’s background and the severity of the crime, and so long as there is no
showing that a defendant ‘has been singled out deliberately for prosecution on the basis
of some invidious criterion,’ that is, ‘“one that is arbitrary and thus unjustified because it
bears no rational relationship to legitimate law enforcement interests[,]”’ the defendant
cannot make out an equal protection violation. [Citation.]” (People v. Wilkinson, supra,
33 Cal.4th at pp. 838-839.)

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“‘[W]hen conducting rational basis review, we must accept any gross
generalizations and rough accommodations that the Legislature seems to have made.’
[Citation.] ‘A classification is not arbitrary or irrational simply because there is an
“imperfect fit between means and ends”’ [citations], or ‘because it may be “to some
extent both underinclusive and overinclusive”’ [citation].” (Johnson v. Department of
Justice, supra, 60 Cal.4th at p. 887.) Because there are plausible reasons for
distinguishing between section 496d, subdivision (a) offenses on the one hand, and
section 496, subdivision (a) offenses on the other hand, defendant has not established any
violation of equal protection in failing to extend reclassification to section 496d,
subdivision (a) offenses.
IV. DISPOSITION
The trial court’s order denying defendant’s petition for resentencing is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
I concur:
McKINSTER
J.

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Slough, J., Concurring.
I agree with the majority’s conclusion that convictions for receiving stolen motor
vehicles under Penal Code section 496d1 are not eligible for resentencing under
Proposition 47, and I agree with the majority’s analysis, with one exception.
The majority concludes section 496d is not a qualifying offense under Proposition
47 because it is not listed in section 1170.18, subdivisions (a) and (b). (Maj. opn., ante,
at p. 8.) This misinterprets the statute. There is no list of eligible offenses that qualify
for resentencing in section 1170.18 or anywhere else in Proposition 47. Section 1170.18
contains a list of the sections Proposition 47 added or amended that change the penalties
for substantive theft-related and drug possession crimes. Numerous statutory sections
setting forth substantive offenses that are eligible for resentencing do not appear in that
list, including sections 487 (grand theft), 459 (burglary), 476 (forgery, counterfeiting),
and 504 (embezzlement). The exclusion of section 496d from the list of new and
amended punishment provisions that appear in section 1170.18 therefore says nothing
about whether section 496d is an eligible offense.
To decide whether an offense is eligible, the courts cannot look to section 1170.18,
but rather must examine the statutory provisions setting out substantive offenses and
determine whether the petitioner would have been guilty of a misdemeanor if Proposition
47 had been in effect at the time of the offense. (§ 1170.18, subd. (a).) The majority
1 Unlabeled statutory citations refer to the Penal Code.

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undertakes this analysis as additional support for its holding and concludes defendant
would not have been guilty of a misdemeanor if Proposition 47 had been in effect at the
time of his offense. (Maj. opn., ante, at pp. 9-10.) I agree with this aspect of the
majority’s analysis, but write separately because I view it as the dispositive analysis for
Proposition 47 redesignation cases.
SLOUGH
J.

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