P. v. Lepe

Filed 1/26/17 P. v. Lepe CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
JAIME ANTONIO LEPE,
Defendant and Appellant.
F071320
(Super. Ct. No. CRM030085)
OPINION
THE COURT*
APPEAL from an order of the Superior Court of Merced County. Mark V.
Bacciarini, Judge.
Carol Foster, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Eric L. Christoffersen and Ivan P. Marrs, Deputy Attorneys General, for
Plaintiff and Respondent.
-ooOoo-
Defendant Jaime Antonio Lepe pled no contest on February 10, 2014, to
possession of a stolen vehicle in violation of Penal Code section 496d.1 He also admitted
*Before Poochigian, Acting P.J., Detjen, J. and Peña, J.

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2.
a prior serious felony allegation for first degree burglary within the meaning of the three
strikes law. California voters passed Proposition 47, the Safe Neighborhoods and
Schools Act, on November 4, 2014. Defendant petitioned the trial court to recall his
sentence and reduce his conviction to a misdemeanor pursuant to section 1170.18,
subdivision (a) on November 20, 2014. The trial court denied defendant’s petition on
February 2, 2015.
Defendant appeals from the denial of his petition for resentencing under section
1170.18 seeking modification of the sentence imposed on his prior conviction for
possessing a stolen vehicle (§ 496d). Defendant contends his conviction is eligible for
resentencing under Proposition 47 and the denial of his request violates principles of
equal protection. We disagree and affirm the trial court’s judgment.
DISCUSSION
Defendant contends rules of statutory interpretation and the clear legislative intent
behind Proposition 47 show that section 496d is eligible for resentencing under sections
1170.18 and 490.2. In addition, defendant argues that treating a conviction for theft of an
automobile under Vehicle Code section 10851 as a felony while other similar property
thefts are treated as misdemeanors under Penal Code section 490.2 violates equal
protection principles. We have previously addressed both issues in People v. Sauceda
(2016) 3 Cal.App.5th 635 (Sauceda), review granted November 30, 2016, S237975.2 We
held in Sauceda that Vehicle Code section 10851 is not affected by the changes enacted
through Proposition 47, and no equal protection violation arises from the different
potential punishments for, or the failure to grant retroactive sentencing relief to, those
1Further statutory references are to the Penal Code unless otherwise indicated.
2Effective July 1, 2016, California Rules of Court, rule 8.1115(e)(1) was amended to
provide that a published opinion of a Court of Appeal has no binding or precedential effect once
the matter is pending review in the Supreme Court and “may be cited for potentially persuasive
value only.”

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3.
convicted under Vehicle Code section 10851. (Sauceda, supra, at pp. 644-650.) We see
no reason to depart from this ruling here.
As explained in Sauceda, a conviction under Vehicle Code section 10851 does
require explicit determination of intent to steal. (Sauceda, supra, 3 Cal.App.5th at pp.
643-644, 646.) Like its Vehicle Code counterpart, section 496d also does not require
theft because it proscribes a class of crimes involving the receipt or the purchase of a
vehicle knowing it was stolen. Sauceda further held the voters did not intend to modify
Vehicle Code section 10851. (Sauceda, supra, at pp. 652-654, citing People v. Wilkinson
(2004) 33 Cal.4th 821, 838.) By a parity of reasoning, we find our decision in Sauceda
persuasive and that its reasoning should apply to section 496d as well as its Vehicle Code
counterpart.
The court in People v. Varner (2016) 3 Cal.App.5th 360, 366-367 (Varner),
review granted November 22, 2016, S237679, held sections 490.2 and 1170.18, enacted
by Proposition 47, did not affect the eligibility of defendants convicted under section
496d for resentencing because the newly enacted sentencing statutes did not include
section 496d even though they expressly included section 496. If a defendant’s
acquisition of a vehicle in violation of section 496d was of property worth less than $950,
he or she is not entitled to resentencing pursuant to section 1170.18. (Varner, supra, 3
Cal.App.5th at p. 370, fn. 4.)
As did our court in Sauceda, Varner further held the equal protection clause did
not apply simply because the prosecutor could have prosecuted the defendant under
section 496, which is subject to Proposition 47, rather than section 496d, a statute not
subject to the proposition’s resentencing provisions. Citing People v. Wilkinson, supra,
33 Cal.4th at page 838, Varner found neither the existence of two identical criminal
statutes prescribing different levels of punishments nor the exercise of the prosecutor’s
discretion in charging one statute but not the other violates equal protection. Varner
noted our Supreme Court has applied the rational basis test where there is a disputed

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statutory disparity where it does not implicate class or a fundamental right. (Varner,
supra, 3 Cal.App.5th at p. 368.) Varner held there was a rational basis for treating
punishment differently under sections 496 and 496d. The Legislature has the discretion
to proceed in an incremental and uneven manner without engaging in arbitrary or
unlawful discrimination. (Varner, supra, at pp. 369-370.)
We agree with the People’s position that there is a rational basis for treating
receipt of stolen vehicles differently from receipt of other stolen property because theft of
vehicles leads to great monetary loss due to the significant expense vehicle theft imposes
on its victim-owner, the unique role vehicles play in securing the livelihoods of their
owners, the substantial costs to businesses such as insurance companies that are acutely
affected by vehicle thefts, and the substantial benefits to criminal enterprises like “chop
shops” that profit from receiving stolen vehicles. We find the reasoning in Varner
persuasive.3
DISPOSITION
The order denying defendant’s petition for resentencing is affirmed.
3We also reject defendant’s assertion that if his sentence is not subject to equal protection
analysis, the rule of lenity should be applied to mandate a resentencing hearing. The People’s
explanation of the public policy reasons for not applying the resentencing provisions of
Proposition 47 to acquisition of stolen vehicles is a persuasive rationale for not following the rule
of lenity here.

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