People v. Suniga CA5

Filed 9/23/16 P. v. Suniga 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F071326 Plaintiff and Respondent, (Super. Ct. No. VCF261041) v.

ANTHONY SUNIGA, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge. Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P.J., Kane, J. and Poochigian, J.

Appellant Anthony Suniga appeals from the denial of his petition for resentencing under Penal Code section 1170.18, seeking modification of the sentence imposed on his prior conviction for receiving a stolen vehicle (Pen. Code, § 496d, subd. (a)). Appellant contends the denial of his request violates principles of equal protection. For the reasons set forth below, we affirm. FACTUAL AND PROCEDURAL BACKGROUND In December 2011, appellant was charged with multiple crimes, including felony charges for unlawful driving or taking of a vehicle (Veh. Code, § 10851) and receiving a stolen vehicle (Pen. Code, § 496d), and misdemeanor charges of being an unlicensed driver (Veh. Code, § 12500) and giving false information to a police officer (Veh. Code, § 31). Following a jury trial where appellant was convicted of the charged misdemeanors, but not resulting in a verdict on the felony counts, appellant pled nolo contendere to the alleged violation of Penal Code section 496d. Appellant received probation. On May 22, 2014, appellant was found to have violated the terms of his probation. As a result, appellant’s probation was terminated and he received an eight-month sentence on the prior conviction under Penal Code section 496d, ordered to run consecutive to his sentence on the charges underlying the probation violation. After Proposition 47 passed, appellant sought to have his sentence under Penal Code section 496d reduced to a misdemeanor pursuant to Penal Code section 1170.18. The request was opposed by the People and denied by the court. It was noted at the time that appellant had raised an equal protection argument. This appeal timely followed. DISCUSSION Appellant contends the trial court wrongly denied his petition for resentencing. He claims his sentence violates equal protection principles and must be reduced to a misdemeanor because there is no rational basis why his conviction under Penal Code