Filed 2/17/16 P. v. Long 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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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, E062513
v. (Super.Ct.No. FVA1400030)
MICHAEL RIDDELL LONG, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,
Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Correen W. Ferrentino, 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, Arlene A. Sevidal, Collette
Cavalier, Elizabeth M. Carino and Christopher P. Beesley, Deputy Attorneys General, for
Plaintiff and Respondent.
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Defendant and appellant Michael Riddell Long appeals from the trial court’s order
denying his Proposition 47 petition seeking to reduce his felony conviction for buying or
receiving a stolen vehicle under Penal Code1 section 496d, subdivision (a) to a
misdemeanor under section 1170.18. For the reasons set forth below, we shall affirm the
judgment.
FACTUAL AND PROCEDURAL HISTORY
On January 6, 2014, a felony complaint charged defendant with evading a police
officer under Vehicle Code section 2800.2, subdivision (a) (count 1); unlawfully taking a
vehicle under Vehicle Code section 10851, subdivision (a) (count 2); and buying or
receiving a stolen vehicle under Penal Code section 496d, subdivision (a) (count 3). The
complaint also alleged three prior prison commitments pursuant to Penal Code section
667.5, subdivision (b).
Defendant pled guilty to count 3 (buying or receiving a stolen motor vehicle), and
admitted the truth of a strike prior conviction.2 In exchange, the remaining counts and
allegations were dismissed, and the trial court sentenced defendant to 16 months in state
prison.
On November 7, 2014, defendant filed a petition under Proposition 47 seeking to
reduce his felony conviction to a misdemeanor under section 1170.18. The trial court
found, and defense counsel agreed, that defendant was ineligible for relief under
1 All further statutory references are to the Penal Code unless otherwise indicated.
2
Defendant simultaneously entered a guilty plea and admitted a strike prior in
another case, No. FVA1301378. The trial court imposed the strike prior in that case.
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Proposition 47 because defendant’s conviction for buying or receiving a stolen motor
vehicle did not meet the criteria under section 1170.18. The court, therefore, denied
defendant’s request. Defendant filed a timely notice of appeal.
DISCUSSION
Defendant makes a single claim on appeal: He contends that the omission of
section 496d, subdivision (a), from Proposition 47 violates the Equal Protection Clause of
the California Constitution. Specifically, defendant claims that Proposition 47 violates
his equal protection rights because it treats similarly situated groups—defendants
convicted under section 487, subdivision (d)(1) (auto theft), and section 496, subdivision
(a)—differently than those convicted of section 496d. We disagree.
A. Overview of Proposition 47
On November 4, 2014, California voters approved Proposition 47, the “Safe
Neighborhoods and Schools Act.” In sum, Proposition 47: (1) requires a misdemeanor
sentence instead of a felony sentence for certain drug possession offenses; (2) requires a
misdemeanor sentence instead of a felony sentence for the crimes of petty theft, receiving
stolen property, and forging/writing bad checks, when the amount involved is $950 or
less; (3) allows a felony sentence (excluding a defendant from a misdemeanor sentence)
for the crimes specified above if a defendant has a prior conviction listed under Penal
Code section 667, subdivision (e)(2)(C)(iv), or a prior conviction for an offense requiring
sex offender registration under Penal Code section 290; and (4) requires resentencing for
defendants serving felony sentences for the crimes specified above unless the trial court
finds an unreasonable public safety risk. (Voter Information Guide, Gen. Elec. (Nov. 4,
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2014) Official Title and Summary, pp. 34, 70; see, e.g., Pen. Code, §§ 459.5, subd. (a),
473, subd. (b), 476a, subd. (b), 490.2, subds. (a), (b), 496, subd. (a), 666, subds. (a), (b);
Health & Saf. Code, §§ 11357, subd. (a), 11377, subds. (a), (b).) The initiative became
effective on November 5, 2014. (Cal. Const., art. II, § 10, subd. (a) [“An initiative statute
or referendum approved by a majority of votes thereon takes effect the day after the
election unless the measure provides otherwise”].)
Penal Code section 1170.18, subdivision (a), lists the former felonies that reduce
to misdemeanors under certain conditions: Health and Safety Code sections 11350,
subdivision (a), 11357, subdivision (a), and 11377, subdivision (a); and Penal Code
sections 459.5, subdivision (a), 473, subdivision (b), 476a, subdivision (b), 490.2,
subdivision (a), 496, subdivision (a), and 666, subdivision (b). The list does not include
section 496d—buying or receiving a stolen motor vehicle. However, under Proposition
47, receiving stolen property (Pen. Code, § 496, subd. (a)) and auto theft (Pen. Code,
§§ 487, subd. (d)(1), 490.2, subd. (a)) are not misdemeanors if the value of the stolen
property or vehicle does not exceed $950.
B. Equal Protection
“‘“The equal protection guarantees of the Fourteenth Amendment and the
California Constitution are substantially equivalent and analyzed in a similar fashion.”’”
(People v. Noyan (2014) 232 Cal.App.4th 657, 666.) The first step to establish a
meritorious equal protection claim is showing the state has adopted a classification that
affects two or more similarly situated groups in an unequal manner. (People v. Rhodes
(2005) 126 Cal.App.4th 1374, 1383.) If a court determines that the challenged law treats
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similarly situated groups differently, then the court will proceed to step two of the equal
protection analysis and determine what level of scrutiny is required. (Id. at p. 1384.)
Where the party, as here, does not claim he belongs to a protected class, he must show
that the “challenged classification bears [no] rational relationship to a legitimate state
purpose.” (People v. Hofsheier (2006) 37 Cal.4th 1185, 1200, overruled on other
grounds in Johnson v. Dept. of Justice (2015) 60 Cal.4th 871.) Thus, defendant has the
burden to showing the lack of a rational relationship. (See Jensen v. Franchise Tax Bd.
(2009) 178 Cal.App.4th 426, 436 [“the party challenging the constitutionality of a state
law must ‘“negat[e] every conceivable basis which might support it”’”].)
To prove an equal protection violation, defendant must first demonstrate that he is
in a class of offenders against whom Proposition 47 discriminates. Defendant has failed
to establish this.
Here, defendant argues that because Proposition 47 renders receiving stolen
property and auto theft as misdemeanors when the value of the stolen property or vehicle
does not exceed $950, the offense of buying or receiving a stolen motor vehicle must be
treated the same because there is no reasonable distinction between the crimes. In this
case, however, there is nothing in the plea or a finding of fact in the record to establish
that the value of the stolen vehicle was $950 or less. Nonetheless, in his reply brief,
defendant claims, “[w]ithout evidentiary proof that the value of the stolen vehicle is more
than $950.00, [defendant] should be afforded relief pursuant to the newly enacted Penal
Code section 490.2.” Defendant, however, has the burden, and he has failed to
demonstrate that the value of the stolen car he received was $950 or less. (See People v.
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Sherow (2015) 239 Cal.App.4th 875, 879-881 [holding that the burden under section
1170.18 to show the value of the item at issue did not exceed $950 lies with the
petitioner].) Because the value of the stolen vehicle is unknown, defendant has failed to
demonstrate that he is in a class of persons with whom he argues receive unequal
treatment—those convicted of buying or receiving a stolen vehicle worth $950 or less.
Defendant’s equal protection argument, therefore, fails.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
RAMIREZ
P. J.
CODRINGTON
J.
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