People v. Avila CA4/2

Opinion

Filed 12/9/15 P. v. Avila 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E063508

v. (Super.Ct.No. FVI026060)

JOBANY AVILA, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Miriam I. Morton,

Judge. Affirmed.

Marilee Marshall, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Gerald L. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Alastair Agcaoili and Christine

Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.

1 INTRODUCTION

Defendant Jobany Avila appeals from the denial of his petition requesting

redesignation of his conviction as a misdemeanor under Penal Code section 1170.18.1

He contends (1) his conviction of receiving a stolen vehicle (§ 496d) qualified for

resentencing under Proposition 47, and (2) equal protection principles require that section

496d offenses be treated as misdemeanors. We affirm.

FACTS AND PROCEDURAL BACKGROUND

As relevant to this appeal, defendant was charged in an information in 2007 with

unlawfully driving or taking a vehicle, a 1998 Nissan Sentra. (Veh. Code, § 10851,

subd. (a).) Pursuant to a plea agreement, defendant entered a plea of no contest to the

incidentally related offense of receiving a stolen vehicle (Pen. Code, § 496d), and other

charges and enhancement allegations were dismissed. Defendant was sentenced to one

year four months in state prison.

On April 9, 2015, defendant filed a petition for resentencing (Pen. Code,

§ 1170.18) requesting that his violation of Vehicle Code section “10851 [sic]” be

designated a misdemeanor. The People opposed the petition on the ground that Vehicle

Code section 10851 was not affected by Proposition 47. The trial court entered an order

stating that the plea was to Penal Code section 496d, which does not qualify for

resentencing under Proposition 47.

1 All further statutory references are to the Penal Code unless otherwise indicated.

2 DISCUSSION

After briefing was completed in this case, this court issued its opinions in People

v. Garness (2015) 241 Cal.App.4th 1370, and People v. Peacock, E063095, 2015

Cal.App. Lexis 1054 ___ Cal.App.4th ___, in which we held that Proposition 47 relief

is not available to reduce a conviction of Penal Code section 496d to a misdemeanor and

that the failure to provide such relief does not violate equal protection principles. For the

reasons set forth in those opinions, we likewise reject defendant’s contentions.

DISPOSITION

The order appealed from is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER J. We concur:

RAMIREZ P. J.

HOLLENHORST J.