California Court of Appeal Aug 18, 2020 No. E070345Unpublished
Filed 8/18/20 P. v. Wehr CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E070345
v. (Super.Ct.No. FWV17002975)
ROBERT KENNETH WEHR, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Dan Detienne,
Judge. Affirmed in part, sentence vacated and remanded with directions.
Eric E. Reynolds, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Eric A.
Swenson and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Robert Kenneth Wehr of a felony count of receiving a stolen
vehicle. (Pen. Code, § 496d, subd. (a); unlabeled statutory citations refer to this code.)
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Before his sentencing, Wehr moved to reduce his conviction to a misdemeanor under the
Safe Neighborhoods and Schools Act (Proposition 47). The trial court denied his motion
and sentenced him to a total of nine years in state prison, including enhancements for five
prior prison terms.
Wehr challenges the trial court’s denial of his Proposition 47 motion. In our
original opinion, we agreed with Wehr. The California Supreme Court granted review of
our opinion and deferred action pending its decision in People v. Orozco (2020) 9 Cal.5th
111 (Orozco). The Supreme Court has now transferred the matter back to us with
directions to vacate our original opinion and reconsider Wehr’s appeal in light of Orozco.
Having done so, we conclude that Wehr is ineligible for Proposition 47 relief. But recent
amendments to the statute imposing enhancements for prior prison terms (§ 667.5, subd.
(b)) require the trial court to resentence Wehr. We thus vacate his sentence and remand
for resentencing but otherwise affirm the judgment.
BACKGROUND
In July 2017, deputy sheriffs found Wehr in a stolen 1985 Dodge Prospector
pickup truck. Wehr’s backpack was in the truck and contained about 2.5 grams of
methamphetamine. The record contains no evidence of the truck’s value.
In addition to Wehr’s conviction for receiving a stolen vehicle, the jury convicted
him of possession of a controlled substance, a misdemeanor. (Health & Saf. Code,
§ 11377.) After a court trial, the court found true a prior strike allegation and five prior
prison term allegations.
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At the beginning of his sentencing hearing, Wehr moved to reduce his felony
conviction for receiving a stolen vehicle to a misdemeanor. He argued that, after
Proposition 47, receiving stolen property worth $950 or less is a misdemeanor.
Moreover, he argued, the prosecution had the burden of proving that the stolen property
was worth more than $950, and because there was no evidence of the value of the truck,
the court had to reduce his conviction. The court denied the motion.
For possession of a controlled substance, the court sentenced Wehr to 306 days in
jail and credited him with 306 days of time served. Wehr’s nine-year prison sentence
consisted of the middle term of two years for receiving a stolen vehicle, doubled to four
years for the prior strike, plus five consecutive one-year terms for the five prison priors.
DISCUSSION
I. Wehr’s Ineligibility for Proposition 47 Relief
Our Supreme Court held in Orozco that convictions for receiving a stolen vehicle
under section 496d are categorically ineligible for Proposition 47 relief. (Orozco, supra,
9 Cal.5th at pp. 118-123.) Wehr is therefore ineligible for Proposition 47 relief, and the
trial court properly denied his motion. Wehr nevertheless contends that his ineligibility
amounts to an equal protection violation under the federal and state Constitutions. We
disagree.
“Both the state and federal Constitutions extend to persons the equal protection of
law.” (People v. Chatman (2018) 4 Cal.5th 277, 287.) An equal protection challenge
requires a showing that the government has adopted a classification affecting two or more
similarly situated groups in an unequal manner. (People v. Wilkinson (2004) 33 Cal.4th
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821, 836 (Wilkinson).) The level of scrutiny that we apply depends on the type of
classification. (Ibid.) Statutes that involve suspect classes like race or national origin, or
those that impinge on “‘fundamental rights,’” are subject to strict scrutiny. (Ibid.)
Statutes involving neither a suspect class nor a fundamental right are subject to the
minimum equal protection standard—rational basis review. (People v. Turnage (2012)
55 Cal.4th 62, 74 (Turnage).)
Wehr argues that strict scrutiny applies here because his fundamental interest in
liberty is at issue. At the same time, he contends that the disparate treatment of his
offense does not survive even rational basis review, so we need not decide whether to
apply strict scrutiny. We conclude that rational basis review applies to Wehr’s claim.
(Wilkinson, supra, 33 Cal.4th at p. 838.) Defendants do not have “‘a fundamental interest
in a specific term of imprisonment or in the designation a particular crime receives’”
(ibid.), and section 496d does not involve a suspect class.
Under rational basis review, “equal protection of the law is denied only where
there is no ‘rational relationship between the disparity of treatment and some legitimate
governmental purpose.’” (Turnage, supra, 55 Cal.4th at p. 74.) “‘This standard of
rationality does not depend upon whether lawmakers ever actually articulated the purpose
they sought to achieve. Nor must the underlying rationale be empirically substantiated.
[Citation.] While the realities of the subject matter cannot be completely ignored
[citation], a court may engage in “‘rational speculation’” as to the justifications for the
legislative choice [citation]. . . . If a plausible basis exists for the disparity, courts may
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not second-guess its ‘“wisdom, fairness, or logic.”’” (Johnson v. Department of Justice
(2015) 60 Cal.4th 871, 881.)
Wehr argues that he is similarly situated to those convicted of receiving stolen
property worth $950 or less (§ 496) and those convicted of stealing a vehicle worth $950
or less (§ 490.2), and that there is no rational basis to distinguish his offense from either
of those offenses. Assuming that he is similarly situated to those groups, the equal
protection challenge lacks merit. First, we reject the challenge for reasons discussed in
Orozco. While Orozco did not involve an equal protection claim, the court addressed a
similar claim—that punishing receipt of stolen vehicles more severely than vehicle theft
or receipt of other stolen property resulted in absurd consequences. (Orozco, supra, 9
Cal.5th at p. 122.) The court rejected the absurdity challenge and held that there were
plausible reasons for the differential treatment. (Ibid.) “For example, the electorate
could have concluded that stolen vehicles, unlike other items of stolen property, are often
dismantled and sold for parts on the secondary market, which can raise their worth above
retail value.” (Ibid.) This is also a plausible reason for treating the offenses differently
under rational basis review.
Second, we rejected the same equal protection challenge in People v. Varner for
reasons that remain sound. “‘The electorate was not obligated to extend relief under
[Proposition 47] to all similar conduct. It could instead move in an incremental way,
gauging the effects of this sea change in penal law.’” (People v. Varner (2016) 3
Cal.App.5th 360, 369.) In addition, the existence of identical penal statutes prescribing
different punishments does not violate equal protection principles, nor does the
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prosecutor’s exercise of discretion in charging under one statute or the other. (Wilkinson,
supra, 33 Cal.4th at p. 838; People v. Varner, at p. 368.) “[S]o 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.” (Wilkinson, at pp. 838-839.) Wehr has
not made such a showing here.
In sum, Proposition 47 does not apply to Wehr’s conviction for receiving a stolen
vehicle. This result does not violate Wehr’s right to equal protection of the law.
II. Sentence Enhancements for Prior Prison Terms
After our Supreme Court transferred this case back to us, we permitted the parties
to file supplemental briefs addressing any matters that arose after we filed the original
opinion in October 2019. Wehr has not filed a supplemental brief, but the People’s
supplemental brief argues that recent amendments to section 667.5, subdivision (b),
require Wehr’s five prior prison term enhancements to be stricken. We agree.
The Legislature amended section 667.5, subdivision (b), effective January 1, 2020.
(People v. Chubbuck (2019) 43 Cal.App.5th 1, 13.) The amended statute “precludes the
imposition of one-year sentence enhancements for a prior prison term unless the prior
offense was sexually violent in nature.” (Ibid.) Moreover, the amended statute applies
retroactively to cases in which the judgment is not final on the effective date. (People v.
Cruz (2020) 46 Cal.App.5th 715, 739.)
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Wehr did not serve any of his five prior prison terms for a sexually violent offense,
so the court may not enhance his sentence under section 667.5, subdivision (b). The
appropriate remedy is to vacate Wehr’s entire sentence and remand for a new sentencing
hearing. (People v. Cruz, supra, 46 Cal.App.5th at p. 739; People v. Keene (2019) 43
Cal.App.5th 861, 865.) Wehr did not receive the maximum possible sentence; the trial
court sentenced Wehr to the middle term under section 496d. The court should have the
opportunity to exercise its sentencing discretion anew, “‘in light of the changed
circumstances.’” (People v. Buycks (2018) 5 Cal.5th 857, 893.)
DISPOSITION
Wehr’s sentence is vacated. On remand, the trial court shall resentence Wehr
without imposing enhancements under section 667.5, subdivision (b). The court shall
forward an amended abstract of judgment reflecting the resentencing to the Department
of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ J.
We concur:
SLOUGH Acting P. J. RAPHAEL J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that convictions for receiving a stolen vehicle under Penal Code section 496d are categorically ineligible for Proposition 47 relief and that the defendant's sentence must be vacated and remanded for resentencing due to statutory amendments limiting prior prison term enhancements.
Issues
Is a conviction for receiving a stolen vehicle under Penal Code section 496d eligible for reduction to a misdemeanor under Proposition 47?
Does the denial of Proposition 47 relief for section 496d convictions violate equal protection?
Do recent amendments to Penal Code section 667.5, subdivision (b) require the vacating of sentence enhancements for prior prison terms?
Disposition. Affirmed in part, sentence vacated and remanded.
Quotations verified verbatim against the opinion
“Our Supreme Court held in Orozco that convictions for receiving a stolen vehicle under section 496d are categorically ineligible for Proposition 47 relief.”