What is the test for making an equal protection claim against the state against a defendant who is charged under two different criminal statutes?

Even if appellant could satisfy the similarly-situated requirement, the law is clear that "neither the existence of two identical criminal statutes prescribing different levels of punishments, nor the existence of a prosecutor's discretion in charging under one such statute and not the other violates equal protection principles." (People v. Wilkinson (2004) 33 Cal.4th 821, 838.) In other words, the state has considerable leeway in terms of choosing which punishment is suitable for a particular offender when his conduct violates more than one statute. Unless a defendant seeking Proposition 47 relief can show he has been signaled out for differential treatment based on some invidious criteria, no equal protection violation will be found. (Id. at p. 839.) Because appellant has failed to make such a showing, his equal protection claim cannot prevail.

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The trial court's order is affirmed.