People v. Moreno CA5

Filed 9/23/16 P. v. Moreno 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F071149 Plaintiff and Respondent, (Super. Ct. No. VCF298279) v.

RAYMOND MORENO, 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, and Kathleen A. McKenna, Deputy Attorney General, for Plaintiff and Respondent. -ooOoo-

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

Appellant Raymond Moreno 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 unlawful driving or taking of a vehicle (Veh. Code, § 10851). Appellant contends the denial of his request violates principles of equal protection. For the reasons set forth below, we affirm. FACTUAL AND PROCEDURAL BACKGROUND On May 20, 2014, appellant pled no contest to one count of unlawfully driving or taking a vehicle under Vehicle Code section 10851 and admitted to several prior theft convictions and prison term enhancements. Relevant to his plea, appellant was apprehended in the driver’s seat of a 1994 Honda Accord that had previously been reported stolen. In exchange for the plea, appellant was offered and received a five-year sentence, with three years of that term suspended. Appellant later petitioned for resentencing pursuant to Proposition 47. The petition was denied because the trial court concluded that a conviction under Vehicle Code section 10851 was not eligible for resentencing. This timely appeal 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 if the vehicle involved was worth less than $950 because there is no rational basis why his conviction under Vehicle Code section 10851 should be punished more harshly than a conviction for theft of an automobile under Penal Code section 487. Standard of Review and Applicable Law “The concept of equal treatment under the laws means that persons similarly situated regarding the legitimate purpose of the law should receive like treatment. [Citation.] ‘“The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.” [Citations.] This initial inquiry is not