Filed 6/10/15 P. v. Martinez CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G051288

         v.                                                            (Super. Ct. No. 12CF2699)

LAURO MARTINEZ                                                         OPINION

     Defendant and Appellant.



                   Appeal from an order of the Superior Court of Orange County, Jonathan S.
Fish, Judge. Affirmed.
                   Cynthia Grimm, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   No appearance for Plaintiff and Respondent.
                                             *               *               *
              Appellant Lauro Martinez pled guilty in 2013 to two felonies: second
degree vehicle burglary and receiving stolen property. He also pled guilty to possession
of burglary tools, a misdemeanor. Late last year, he filed an application to have his
felony convictions reduced to misdemeanors pursuant to Penal Code section 1170.18
subdivision (f), a motion for what is generally referred to as Proposition 47 relief. The
trial court granted the motion as to the receiving stolen property charge, but denied it as
to the vehicle burglary. Martinez appealed.
              We appointed counsel to represent him on that appeal. Counsel filed a brief
which set forth the procedural facts of the case (the facts of the crimes themselves are
largely irrelevant because the argument is solely directed at Martinez’s plea and the
application to it of Pen. Code, § 1170.18). Counsel did not argue against her client, but
advised us there were no issues to argue on his behalf. Martinez was invited to express
his own objections to the proceedings against him, but did not. Under the law, this put
the onus on us to review the record and see if we could find any issues that might result in
some kind of amelioration of Martinez’s lot. (People v. Wende (1979) 25 Cal.3d 436.) It
should be emphasized that our search was not for issues upon which Martinez would
prevail, but only issues upon which he might possibly prevail.
              We have examined the record and found no arguable issue. Martinez’s
counsel below made a valiant effort to convince the court the statute applied because
Martinez’s crime was one of a theft involving less than $950, the ceiling provided by the
new definition of petty theft. But the trial court correctly found that the crime was one of
entering a vehicle – a burglary – not one of theft. It reduced the receiving stolen property
charge, but not the vehicle burglary.
              That ruling appears to us – as it did to appellate counsel – unassailable.
Proposition 47 simply does not provide for reduction of burglary charges. The property




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taken here has no bearing whatsoever on the charge. The crime would still be a burglary
whether property valued at more than $950, less than $950, or no property at all were
taken. Appellant was not convicted in this count of taking anything; he was convicted of
entering the car illegally. Penal Code section 1178 does not, by its terms, address
burglary, and we can find nothing in its language to indicate it was ever intended to apply
to that crime.
                 Nor are we impressed by the argument that stealing a car valued at less than
$950 would be a misdemeanor, so burglarizing a car and taking from it property valued at
less than $950 should also be a misdemeanor, and a contrary holding would violate the
constitution’s guarantees of equal protection of the laws. In the first place, California law
has long recognized that stealing and burglary are two very different things and that
burglary is more serious. Punishing more severely someone who breaks into a car than
someone who steals it is not different in any legally cognizable way than prescribing a
more serious punishment for someone who breaks into a house than for someone who
merely steals from it while there.
                 More directly applicable to this case is the fact the punishments for the two
crimes are the same. A second degree burglary – appellant’s crime – is punishable by a
year in county jail or imprisonment for the term prescribed in Penal Code section 1170,
subdivision (h). (Pen. Code, § 461, subd. (b).) Auto theft is punishable by a year in
county jail or imprisonment for the term prescribed in Penal Code section 1170,
subdivision (h). (Veh. Code, § 10851.)




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             The trial court was correct in denying appellant’s motion to reduce his
burglary conviction to a misdemeanor, and appellate counsel was correct in concluding
there was no arguable issue on appeal.
             The order is affirmed.




                                               BEDSWORTH, J.

WE CONCUR:



O’LEARY, P. J.



RYLAARSDAM, J.




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