No. G052308.

THE PEOPLE, Plaintiff and Respondent, v. MARK SPENCER WHITING, Defendant and Appellant.

Court of Appeals of California, Fourth District, Division Three.

Attorney(s) appearing for the Case

Richard de la Sota , 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, Barry Carlton and Sharon L. Rhodes , Deputy Attorneys General, for Plaintiff and Respondent.


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



Mark Spencer Whiting appeals the trial court's order denying his petition under Proposition 47 to redesignate as misdemeanors (see Pen. Code, § 1170.18, subd. (f); unlabeled statutory references are to this code unless noted) his felony convictions for knowingly receiving a stolen vehicle (§ 496d) and driving it without the owner's consent (Veh. Code, § 10851, subd. (a); hereafter § 10851(a)). Proposition 47 does not expressly reclassify either of these offenses, and Whiting does not suggest the electorate intended to make them eligible for redesignation.1 Instead, he argues the Fourteenth Amendment's equal protection clause requires that those offenses be eligible for redesignation. His claim fails under well-established law, and we therefore affirm the trial court's order.



In April 2007, Whiting pleaded guilty to a complaint alleging in count 1 a felony violation of section 10851(a) with a prior conviction for the same offense (see § 666.5 [increasing punishment for repeat felony convictions of § 10851(a)]), and in count 2 a felony violation of section 496d. As the factual basis underlying his plea on both counts, Whiting admitted the prior felony section 10851(a) violation and that he "willfully and unlawfully took a 1996 Toyota Camry without the consent of the owner . . . and with the intent to temporarily deprive [her] of possession." The trial court sentenced him to the low term of two years under section 666.5 on count 1, and under section 654 stayed his sentence on the receipt of a stolen vehicle count.

In April 2015, Whiting filed his Proposition 47 petition, and the parties stipulated before the hearing that the vehicle at issue in his 2007 plea was a 1996 Camry valued at $800 based on the purchase price the owner paid a month before it was stolen. The trial court denied the petition on grounds the "[c]harges are not eligible for relief under Proposition 47," and Whiting now appeals.



Enacted in 2014 as the Safe Neighborhoods and School Act, Proposition 47 reclassified several theft and drug possession offenses as misdemeanors (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089), and provided a mechanism to redesignate existing felony convictions for those offenses as misdemeanors (§ 1170.18). Specifically, section 1170.18, subdivision (f), provides that a person "who has completed his or her [felony] sentence for a conviction, whether by trial or plea," may be eligible for redesignation if he or she "would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense."

Proposition 47 changed the general penalty for receiving stolen property (§ 496) from a wobbler offense to a misdemeanor for property worth less than $950. But it did not alter the specific statutory provision punishing receipt of a vehicle, trailer, construction equipment, or vessel known to be stolen (§ 496d), which remains a wobbler. Nor did Proposition 47 alter the terms of section 10851(a) or other Vehicle Code offenses.

Section 10851(a) punishes unlawful driving or taking of a vehicle as a wobbler. It provides: "Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner . . . of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle . . . is guilty of a public offense." (Ibid.) The broad terms of the statute "`proscribe[] a wide range of conduct'" (People v. Garza (2005) 35 Cal.4th 866, 876 (Garza)), including: (1) vehicle theft where the intent is to deprive the owner of the vehicle permanently; (2) mere joyriding with no intent to steal the vehicle; and (3) "posttheft driving" in which the prosecutor also need only prove the lesser intent of temporary deprivation. (People v. Smith (2013) 57 Cal.4th 232, 242 [a person can violate section 10851(a) by either taking or just driving a vehicle]; Garza, supra, 35 Cal.4th at pp. 876, 880-881 [unlawful driving of a vehicle is not a form of theft when the driving occurs after theft is complete].)

Whiting notes that section 487, subdivision (d)(1), defines automobile theft as a per se category of grand theft, which ordinarily is a wobbler (§ 489, subd. (c)), but Proposition 47 added section 490.2 as a new punishment provision governing petty theft. It provides: "Notwithstanding [s]ection 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," unless the defendant has committed a prior serious or violent felony or registerable sex offense, which does not apply here. (§ 490.2, subd. (a), italics added.)

Whiting does not suggest that the electorate intended this redesignation of automobile grand theft as a misdemeanor for vehicles worth less than $950 to apply to offenses committed under the Vehicle Code, including section 10851(a). He acknowledges he avoids this tack because the factual basis he admitted in his plea did not amount to theft, but only an "intent to temporarily deprive the owner of possession" of her vehicle. At the time, the plea undoubtedly served his best interests because the penalty for grand theft auto under section 487 was much harsher than a Vehicle Code violation under section 10851(a).

Instead, Whiting argues his offenses must be eligible for redesignation under the Fourteenth Amendment's equal protection guarantee. He notes that if he had pleaded guilty to grand theft under section 487, his offense for taking an $800 vehicle now would qualify for misdemeanor punishment and redesignation. Similarly, the prosecutor had discretion to charge him under section 496 with the receipt of "any" property, including a vehicle, rather than under section 496d, and if that had been the case, he now would be eligible for misdemeanor resentencing for identical conduct.

But these equal protection arguments fail under well-established precedent. "[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 than 5 years under the provisions of section 10851 of the Vehicle Code." (People v. Romo (1975) 14 Cal.3d 189, 197.) As the Supreme Court has explained, "[N]either 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. [Citation.]" (People v. Wilkinson (2004) 33 Cal.4th 821, 838-839 [harsher penalty for conduct charged under ostensibly lesser offense does not offend equal protection].) To the contrary, "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." (Ibid.)

This is particularly true here where the prosecutor charged Whiting's section 10851(a) and section 496d offenses together and he was convicted of both under his plea agreement. That would not have been possible if Whiting had been the initial auto thief because one cannot as separate offenses both steal and receive from oneself the same stolen property — it is the same conduct. (Garza, supra, 35 Cal.4th at p. 876 ["A person who violates section 10851(a) by taking a car with the intent to permanently deprive the owner of possession, and who is convicted of that offense on that basis, cannot also be convicted of receiving the same vehicle as stolen property"].)

The prosecutor's decision to charge and agree to a plea including section 10851(a) and section 496d therefore suggests Whiting was engaged in posttheft driving associated with the receipt of stolen property, rather than the more innocuous conduct of "mere" joyriding, which also is punished under section 10851(a) and is often associated with youthful indiscretion. Whiting invokes the latter in arguing it would be irrational for the electorate to reduce the punishment for grand theft auto under section 487 to a misdemeanor for a low value vehicle under section 490.2, and not have equal protection require the same reduction for the less culpable intent involved in temporarily taking a vehicle.

But the Legislature added section 496d to the Penal Code to "target persons involved in the business of vehicle theft" (italics added), a potentially more serious social ill than either simple joyriding or auto theft unconnected to passing the vehicle to third parties. (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 encompass only motor vehicles . . . receiv[ed as] stolen property"].) As the Attorney General observes, unlike 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. Also, stolen vehicles frequently are used to commit other crimes further endangering the public.

Consequently, the electorate in enacting Proposition 47 reasonably could distinguish between sections 496 and 496d, and not extend misdemeanor petty theft treatment to the latter on the basis that knowingly receiving a stolen vehicle is often connected to chop shops, vehicle theft rings, or the commission of additional crimes. The electorate also reasonably could differentiate between nominal instances of grand theft auto under section 487 and taking or driving a vehicle under section 10851(a), at least as here where the defendant is charged and convicted of the latter in conjunction with section 496d. As our high court has explained, the governing standard for equal protection analysis "`does not depend upon whether lawmakers ever actually articulated the purpose they sought to achieve. Nor must the underlying rationale be empirically established. [Citation.]'" (Johnson v. Department of Justice (2015) 60 Cal.4th 871, 881.) Instead, because the burden rests on the party mounting an equal protection challenge, he or she "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.]" (Ibid.)

Because a plausible basis exists for disparate resentencing treatment of offenses committed under sections 496d and 496, including Whiting's related posttheft driving offense under section 10851(a), equal protection principles do not require that he be eligible for resentencing under Proposition 47.



The trial court's order denying Whiting's resentencing petition is affirmed.

BEDSWORTH, ACTING P. J. and IKOLA, J., concurs.


1. That particular issue is pending before the Supreme Court as to section 496d (see, e.g., People v. Varner (2016) 3 Cal.App.5th 360, rev. granted Nov. 22, 2016, S237679) and section 10851(a) (see, e.g., People v. Sauceda (2016) 3 Cal.App.5th 635, rev. granted Nov. 30, 2016, S237975; People v. Solis (2016) 245 Cal.App.4th 1099, rev. granted June 8, 2016, S234150, People v. Ortiz (2016) 243 Cal.App.4th 854, rev. granted Mar. 16, 2016, S232344).


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