Filed 4/12/16 P. v. Bartlett CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G051386

         v.                                                            (Super. Ct. No. 14NF4151)

ROBERT JAMES BARTLETT,                                                 OPINION

     Defendant and Appellant.



                   Appeal from a postjudgment order of the Superior Court of Orange County,
Jonathan S. Fish, Judge. Affirmed.
                   John F. Schuck, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and
Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
                                          *                  *                  *
                                      INTRODUCTION
              Defendant Robert James Bartlett appeals from the order denying his
petition under Penal Code section 1170.18 for, inter alia, the reduction of his felony
convictions, for unlawfully taking a vehicle in violation of Vehicle Code section 10851
and receiving a stolen motor vehicle in violation of Penal Code section 496d, to
misdemeanors. (All further statutory references are to the Penal Code unless otherwise
specified.) Bartlett argues his convictions fall within the category of felony offenses that
qualify for reduction to misdemeanors by the passage of the Safe Neighborhoods and
Schools Act (Proposition 47). He also argues the denial of his petition under the new
statutory scheme violates his right to equal protection of the law under the Fourteenth
Amendment to the United States Constitution.
              We affirm. Neither Vehicle Code section 10851 nor section 496d is
included in the list of statutes contained in section 1170.18, defining felonies that qualify
for redesignation as misdemeanors. Even if we were to assume both offenses constitute
theft-related offenses within the meaning of section 490.2, and thereby potentially qualify
for redesignation to misdemeanors under Proposition 47, the petition was properly denied
because Bartlett failed to prove that the stolen car he had received and unlawfully had
taken had a value of no more than $950, which is a requirement of misdemeanor petty
theft under section 490.2. Bartlett’s equal protection argument fails due to the same
failure of proof.


                                       BACKGROUND
              In October 2014, Bartlett was charged in a felony complaint with one count
each of (1) unlawful taking of a vehicle in violation of Vehicle Code section 10851,
subdivision (a) (count 1); (2) receiving stolen property in violation of section 496d,
subdivision (a) (count 2); (3) possession of a controlled substance (heroin) in violation of
Health and Safety Code section 11350, subdivision (a) (count 3); and (4) possession of

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burglary tools in violation of section 466 (count 4). Bartlett pleaded guilty to all four
counts, stating as the factual basis of his plea: “[O]n October 1, 2014 I took another’s
vehicle; received the same knowing it to be stolen; did possess a usable quantity of
heroin; and did possess tool used to commit burglary and when I took and drove the car I
knew I did not have the consent of the owner and I intended to permanently deprive the
owner of possession of the car.” The trial court imposed a total sentence of 16 months in
jail.
              Bartlett filed a petition under section 1170.18, subdivision (a), in which, as
amended, he sought to have his felony convictions for counts 1, 2, and 3 recalled and
reduced to misdemeanors (the petition). The People filed a response opposing the
petition as to counts 1 and 2 on the ground the “loss exceeds 950 dollars.” The People
did not oppose the petition as it applied to count 3.
              The trial court denied the petition as to counts 1 and 2 and granted the
petition as to count 3. Bartlett appealed.


                                        DISCUSSION
                                              I.
              Proposition 47 and Standard for Interpreting Voter Initiatives
              In 2014, the voters enacted Proposition 47, which makes certain drug- and
theft-related offenses misdemeanors, unless the offenses were committed by certain
ineligible defendants. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089, 1091.)
Those offenses previously had been designated either as felonies or as crimes that can be
punished as either felonies or misdemeanors. (Id. at p. 1091.) Proposition 47 added,
among other things, sections 490.2 and 1170.18 to the Penal Code. (People v. Rivera,
supra, at pp. 1091-1092.) Section 490.2 provides that “obtaining any property by theft”
constitutes a misdemeanor where the value of the property taken does not exceed $950.
(See People v. Acosta (2015) 242 Cal.App.4th 521, 525.)

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                                             II.

          Bartlett Failed to Show Proposition 47 Applies to His Convictions for
              Unlawful Taking of a Vehicle and Receiving Stolen Property.
              Bartlett was convicted of unlawful taking of a vehicle in violation of
Vehicle Code section 10851, subdivision (a), and receiving stolen property in violation of
section 496d, subdivision (a). Neither Vehicle Code section 10851 nor section 496d is
included in section 1170.18, subdivision (a)’s list of statutes defining felony offenses that
qualify for redesignation as misdemeanors. Indeed, “[t]he ameliorative provisions of
Proposition 47 apply to ‘Sections 11350, 11357, or 11377 of the Health and Safety Code,
or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have
been amended or added by this act.’ (§ 1170.18.)” (People v. Acosta, supra, 242
Cal.App.4th at p. 526.)
              Notwithstanding the omission of the crimes of unlawful taking of a vehicle
and receiving stolen property from the enumerated offenses in section 1170.18,
subdivision (a), Bartlett argues that both offenses qualify as theft-related offenses within
the meaning of section 490.2 and, therefore, under that statute, his convictions are
eligible for redesignation to misdemeanors. Section 490.2, subdivision (a) provides in
relevant part: “Notwithstanding Section 487 or any other provision of law defining grand
theft, obtaining any property by theft where the value of the money, labor, real or
personal property taken does not exceed nine hundred fifty dollars ($950) shall be
considered petty theft and shall be punished as a misdemeanor.” Section 487 defines
grand theft, which includes the theft of an automobile. (§ 487, subd. (d)(1).)
              We do not need to decide whether section 490.2 might be applied to reduce
some felony convictions under Vehicle Code section 10851 or section 496d to
misdemeanors because even were we to assume such an application, section 490.2
requires that the property at issue must have a value of $950 or less. Bartlett’s factual
basis for his guilty plea only showed he took “another’s vehicle” and drove it without the


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owner’s consent. Nothing in our record shows the value of the stolen vehicle. Bartlett
had the burden of showing the facts establishing his eligibility for relief under
Proposition 47, including that the value of the stolen vehicle did not exceed $950.
(People v. Sherow (2015) 239 Cal.App.4th 875, 877 [section 1170.18 places the burden
on the petitioner to show that the value of the item at issue did not exceed $950].)
Because Bartlett failed to carry that burden, the petition was properly denied.


                                                  III.
       Bartlett’s Constitutional Right to Equal Protection Has Not Been Violated.
                   Bartlett argues that the equal protection clause of the Fourteenth
Amendment to the United States Constitution requires application of the provisions of
sections 490.2 and 1170.18 to his felony convictions for violating Vehicle Code
section 10851 and section 496d. Bartlett’s argument is based on section 490.2,
subdivision (a)’s provision that even a conviction for grand theft auto in violation of
section 487, subdivision (d)(1) constitutes a misdemeanor offense if the value of the
vehicle does not exceed $950.
                   In his opening brief, Bartlett argues he is “similarly situated to a thief who
took the old 1993 Honda in that he took the vehicle without permission, or received or
withheld it from the owner knowing he did not have permission from the owner. Every
vehicle thief knows that he possesses the fruits of his theft as stolen property and every
vehicle thief takes or participates in the driving of the car without permission of the
owner. [Bartlett] is exactly like a vehicle thief except that he did not necessarily intend to
deprive the owner of the vehicle forever and may have merely extended the owner’s loss
rather than caused it. Moreover, it makes little sense to discriminate against a lesser
            [1]
offender.         Assuming that vehicle taking under Vehicle Code section 10851 and
 1
   Bartlett stated in the factual basis of his guilty plea that he “took another’s vehicle,”
received it “knowing it to be stolen,” and “intended to permanently deprive the owner of

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receiving a stolen vehicle under Penal Code section 49[6]d were actually and
intentionally omitted from the relief granted to offenders who took the same vehicle
under Penal Code section 487, such a classification denied equal protection as the vehicle
                                                                          2
taking offender is clearly and objectively less dangerous and harmful.”
              “‘“The equal protection guarantees of the Fourteenth Amendment and the
California Constitution are substantially equivalent and analyzed in a similar fashion.
[Citations.]” [Citation.] We first ask whether the two classes are similarly situated with
respect to the purpose of the law in question, but are treated differently. [Citation.] If
groups are similarly situated but treated differently, the state must then provide a rational
justification for the disparity. [Citation.]’” (People v. Noyan (2014) 232 Cal.App.4th
657, 666.) “‘“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.]’ [Citation.] This concept
‘“‘compels recognition of the proposition that persons similarly situated with respect to
the legitimate purpose of the law receive like treatment.’” [Citation.]’” (Ibid.)
              An individual who has stolen a vehicle in violation of section 487 is
eligible for redesignation of his or her felony conviction to a misdemeanor under
sections 490.2 and 1170.18 if the stolen vehicle is worth no more than $950. Bartlett’s
equal protection argument therefore depends on his establishing that he is similarly
situated to individuals convicted of stealing a vehicle worth $950 or less. As discussed

possession of the car.” Bartlett’s admissions appear to undermine his argument that he
should be considered a “lesser offender” as compared with the vehicle thief who violated
section 487, subdivision (d)(1).
  2
    A violation of Vehicle Code section 10851 has been held to be a lesser included
offense of grand theft auto in violation of section 487 (People v. Barrick (1982) 33
Cal.3d 115, 128), meaning that all of the elements of the former lesser offense are also
elements of the latter greater offense (People v. Sanchez (2001) 24 Cal.4th 983, 987-988).
A lesser included offense, however, is not necessarily less serious than a greater offense;
it simply has fewer statutory elements. (See People v. Wilkinson (2004) 33 Cal.4th 821,
839 [not irrational to punish lesser included offense more severely than greater offense].)

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ante, Bartlett has not shown he is similarly situated to such a class because he failed to
show the value of the vehicle that he “received” and “took.” There is nothing in
Bartlett’s plea or any finding of fact that establishes the vehicle had a value of $950 or
less. Because the record does not show the value of the stolen vehicle, Bartlett has failed
to show he is similarly situated to persons convicted of grand theft auto involving
vehicles with a value of no more than $950, who, he contends, received unequal
treatment under Proposition 47. We therefore reject his equal protection challenge.


                                        DISPOSITION
              The postjudgment order is affirmed.



                                                  FYBEL, ACTING P. J.

WE CONCUR:



IKOLA, J.



THOMPSON, J.




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