Filed 10/3/16 P. v. Le CA2/7

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN



THE PEOPLE,                                                          B264196

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. KA108701)
         v.

HOA DUC LE,

         Defendant and Appellant.




                   APPEAL from a judgment of the Superior Court of Los Angeles County,
Bruce F. Marrs, Judge. Affirmed.
                   Stephanie L. Gunther, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Susan Sullivan
Pithey and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.


                                             ____________________
                                    INTRODUCTION


       Hoa Duc Le appeals from the judgment entered after a jury convicted him of
felony burglary of a vehicle and misdemeanor possession of burglary tools. He contends
the trial court erred by imposing a felony sentence on his conviction for burglary of a
vehicle because under Proposition 47, the Safe Neighborhoods and Schools Act (Pen.
Code, § 1170.18),1 the offense was a misdemeanor. We affirm.


                 FACTUAL AND PROCEDURAL BACKGROUND


       In April 2015 a jury convicted Le of second degree burglary of a vehicle (§ 459), a
felony, and possession of burglary tools (§ 466), a misdemeanor, after hearing evidence
that he broke into a car parked at a mall, did not take anything from the car, and was
arrested shortly afterward with a shaved key in his pants pocket.2 The trial court
sentenced Le on the conviction for burglary of a vehicle to three years in county jail, plus
two one-year enhancements pursuant to section 667.5, subdivision (b), and on the
conviction for possession of burglary tools to a concurrent term of six months. Le timely
appealed.


                                      DISCUSSION


       Le argues the trial court erred by imposing a felony sentence on his conviction for
burglary of a vehicle under section 459 because Proposition 47 made that offense a


1
       Statutory references are to the Penal Code.
2
        “[A] shaved key is a standard vehicle key that has been shaved down with a metal
file or other hard object to make it much slimmer than a regular key. A shaved key
enables the user to bypass the pins in the ignition cylinder, so that the key may be used to
start cars other than the one for which the key was designed, and to enter such cars as
well.” (People v. Najera (2008) 43 Cal.4th 1132, 1135.)

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misdemeanor in cases where, as here, “the property taken or attempted to be taken is
valued under $950.” Even assuming Le did not forfeit the argument by failing to raise it
in the trial court, Le’s argument fails: Proposition 47 did not reduce the offense of
burglary of a vehicle to a misdemeanor, regardless of the value of the property the
defendant took or attempted to take.
       Proposition 47, enacted by the voters on November 4, 2014, “‘makes certain drug-
and theft-related offenses misdemeanors, unless the offenses were committed by certain
ineligible defendants. These offenses had previously been designated as either felonies
or wobblers (crimes that can be punished as either felonies or misdemeanors).’” (People
v. Morales (2016) 63 Cal.4th 399, 404.) Proposition 47 effected these changes “by
amending the language of certain statutes that previously defined felony offenses,
explicitly reduc[ing] a number of specified offenses from felonies to misdemeanors,” and
by “add[ing] new misdemeanor offenses to the Penal Code.” (People v. Chen (2016) 245
Cal.App.4th 322, 326 (Chen).) “The offenses amended or added by Proposition 47 are
sections 459.5, 473, 476a, 490.2, 496, and 666, and Health and Safety Code sections
11350, 11357, and 11377.” (Ibid.; see § 1170.18, subd. (a).)
       Whether Proposition 47 applies to the offense of burglary of a vehicle is a question
of statutory interpretation, which we review de novo. (See People v. Bush (2016) 245
Cal.App.4th 992, 1003.) In doing so, “we apply the same principles that govern statutory
construction. [Citation.] Thus, ‘we turn first to the language of the statute, giving the
words their ordinary meaning.’ [Citation.] The statutory language must also be
construed in the context of the statute as a whole and the overall statutory scheme.
[Citation.] When the language is ambiguous, ‘we refer to other indicia of the voters’
intent, particularly the analyses and arguments contained in the official ballot pamphlet.’
[Citation.] If a penal statute is still reasonably susceptible to multiple constructions, then
we ordinarily adopt the ‘“construction which is more favorable to the offender[.]”’”
(People v. Rizo (2000) 22 Cal.4th 681, 685-686; accord, People v. Marks (2015) 243
Cal.App.4th 331, 334; see Professional Engineers in California Government v. Kempton
(2007) 40 Cal.4th 1016, 1043 (Kempton) [“[o]ur role as a reviewing court is to simply

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ascertain and give effect to the electorate’s intent guided by the same well-settled
principles we employ to give effect to the Legislature’s intent when we review
enactments by that body”].)
       Le concedes, and we agree, that the ordinary meaning of the language of
Proposition 47 does not reduce the offense for burglary of a vehicle under section 459 to
a misdemeanor. (See §1170.18 [listing the sections Proposition 47 added or amended];
Chen, supra, 245 Cal.App.4th at p. 326 [“[t]he offense of burglary as defined in section
459 is not one of the reduced offenses included in the text of Proposition 47, except to the
extent that new section 459.5—the misdemeanor crime of shoplifting—now applies”];
People v. Acosta (2015) 242 Cal.App.4th 521, 526 [“neither car burglary [n]or its attempt
[is] mentioned in the list of statutes reduced to a misdemeanor” by Proposition 47].)
       Notwithstanding this concession, Le argues that other sections Proposition 47
added or amended create an ambiguity concerning whether voters intended to reduce
burglary of a vehicle under section 459 to a misdemeanor when the value of property
taken does not exceed $950. He argues that the voters’ expressed intent to reduce certain
theft offenses, including shoplifting (§ 495.5), which was previously punishable as
burglary under section 459 (see Chen, supra, 245 Cal.App.4th at p. 326), suggests voters
similarly intended to reduce all second-degree burglary offenses under section 459. As
Le puts it: “The ambiguity exists because the voters specifically intended to reduce the
punishment for theft offenses like petty theft (not limited to shoplifting) where the value
of the property does not exceed $950.”
       We agree with the other courts that have rejected this argument. As the court
explained in Acosta, supra, 242 Cal.App.4th 521, in rejecting the defendant’s argument
that burglary of a vehicle is within the “theft-related” provisions of Proposition 47,
burglary of a vehicle is not “merely another form of theft, as theft is not an element of the
offense.” (Id. at p. 526; see ibid. [the “comparison of burglary of a motor vehicle to theft
offenses fails”].) “‘[T]he crime of burglary can be committed without an actual taking, as
opposed to the crimes of theft, robbery, and carjacking.’” (Ibid.) Burglary of a vehicle,
in particular, “is committed by entry into ‘vehicle as defined by the Vehicle Code, when

                                              4
the doors are locked . . . with intent to commit grand or petit larceny.’” (Ibid.; see People
v. Magallanes (2009) 173 Cal.App.4th 529, 535-536 [because “[a] burglary is committed
when the defendant enters one of the premises specified in the statute with the intent to
steal something or commit any felony,” the “crime of burglary can be committed without
an actual taking, as opposed to the crimes of theft, robbery, and carjacking”].) Thus,
even assuming voters intended Proposition 47 to reduce the punishment for “theft
offenses like petty theft,” such an intent would not include the offense of burglary of a
vehicle. (See Acosta, at p. 526 [“‘[c]arjacking, like theft and robbery, and unlike
burglary, is a crime centered on the felonious taking of property”].) Moreover, “[s]ection
459.5 [shoplifting] makes reference to no other type of burglary, and it provides no
reason to believe that burglary of a locked motor vehicle is now a misdemeanor when the
loss does not exceed $950.” (Id. at p. 527.)
       Thus, the statutory language of Proposition 47 makes clear that “[t]he offense of
burglary, when charged as a felony under section 459, remains a felony offense following
the passage of Proposition 47 unless the defendant’s criminal conduct involved a theft
from a commercial establishment, and the theft involved less than $950, in which case the
offense is now shoplifting under section 459.5.”3 (Chen, supra, 245 Cal.App.4th at p.
327.) This is true of the offense of burglary of a vehicle in particular. (See Acosta,
supra, 242 Cal.App.4th at pp. 526-527 [rejecting defendant’s “effort to bring attempted
car burglary within the purview of Proposition 47”].)
       Because nothing in the ordinary meaning of the statutory language or the overall
statutory scheme suggests voters intended Proposition 47 to reduce an offense for
burglary of a vehicle to a misdemeanor, we need not resort, as Le suggests, to examining
“other indicia of the voters’ intent,” such as the official ballot material, or relying on the
rule of lenity. (See People v. Rizo, supra, 22 Cal.4th at pp. 685-686.) “‘“‘Absent
ambiguity, we presume that the voters intend the meaning apparent on the face of an


3
       Le does not contend his offense for burglary of a vehicle meets the definition of
shoplifting under section 459.5.

                                               5
initiative measure [citation] and the court may not add to the statute or rewrite it to
conform to an assumed intent that is not apparent in its language.’”’” (People v.
Mulcrevy (2014) 233 Cal.App.4th 127, 132.) “‘If the language of a voter-enacted
measure is ‘clear and unambiguous, there ordinarily is no need for construction.
[Citations.] We presume that the voters intended the meaning apparent on the face of the
measure, and our inquiry ends.’” (People v. Cordova (2016) 248 Cal.App.4th 543, 557,
review granted Aug. 31, 2016, S236179; see Arias v. Superior Court (2009) 46 Cal.4th
969, 979 [“[u]sually, there is no need to construe a provision’s words when they are clear
and unambiguous and thus not reasonably susceptible of more than one meaning”];
People v. Curry (2016) 1 Cal.App.5th 1073, 1076 [“‘[i]f the language is clear and
unambiguous there is no need for construction, nor is it necessary to resort to indicia of
the intent of the Legislature (in the case of a statute) or of the voters (in the case of a
provision adopted by the voters)’”]; People v. Vasquez (2016) 247 Cal.App.4th 513, 519
[“‘“‘[w]hen statutory language is clear and unambiguous, there is no need for
construction and courts should not indulge in it’”’”].)


                                       DISPOSITION


       The judgment is affirmed.



              SEGAL, J.

We concur:



              PERLUSS, P. J.                                              GARNETT, J. *


*
 Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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