Filed 2/29/16 P. v. Robinson CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B261644

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. KA101498)
         v.

MARK ROBINSON,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County. Wade
Olson, Commissioner. Affirmed.
                                                         ______

         Myra Sun, 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, Assistant Attorney General, Mary Sanchez and Andrew S.
Pruitt, Deputy Attorneys General, for Plaintiff and Respondent.
                                                         ______
       Appellant Mark Robinson appeals from the trial court’s denial of his petition for
recall of his sentence and resentencing under Penal Code section 1170.181, on his
convictions of three counts of felony second degree burglary. He argues that the trial
court should have resentenced him because Proposition 47, the Safe Neighborhood
and Schools Act, reclassifies his crimes as misdemeanors. He further claims that if
section 1170.18 does not require resentencing, equal protection entitles him nonetheless
to resentencing because he is similarly situated to a person whose criminal conduct falls
within Proposition 47. We disagree. Proposition 47 does not reclassify all commercial
burglaries as misdemeanors, and appellant failed to carry his burden to show that his
crimes would qualify for resentencing. Appellant also has not demonstrated that his
sentence violates equal protection. Accordingly, we affirm.

                 FACTUAL AND PROCEDURAL BACKGROUND
       On April 9, 2014, the trial court sentenced appellant to three years in prison
under section 1170, subdivisions (h)(1) and (h)(2) based on conviction of three counts
of violating section 459, second degree burglary. On December 1, 2014, appellant filed a
petition for recall of his sentence and resentencing under section 1170.18. Appellant did
not support his petition with any evidence disclosing the nature or circumstances of his
burglary convictions. His counsel, however, alleged that “according to the arrest report”
the value of the items taken was under $950. During the hearing on the petition, the
prosecutor stated that appellant’s convictions involved “burglary at L.A. Fitness of the
patrons’ lockers.” The trial court denied the petition. Appellant timely appeals.

                                      DISCUSSION
I.     The Trial Court Did Not Err In Denying Appellant’s Petition.
       Appellant’s burglary convictions under section 459 are not among the enumerated
offenses that are now classified as misdemeanors by Proposition 47 and thus, are not
eligible for reclassification under section 1170.18. (See § 1170.18, subd. (a).) Appellant
argues, however, that the voters intended Proposition 47 to apply to crimes in addition to

1
       All statutory references are to the Penal Code unless otherwise indicated.

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those expressly enumerated in section 1170.18. He maintains that all second degree
burglaries from commercial establishments of property valued less than $950 should be
reclassified under Proposition 47 to fulfill the voters’ intent to treat all nonserious,
nonviolent crimes as misdemeanors.
       Recently in People v. Gonzales (2015) 242 Cal.App.4th 35, 40, Division One
of the Fourth District Court of Appeal rejected this argument. The court concluded that
under the statutory interpretation principle of unius est exclusion alterius, the omission of
certain theft crimes from Proposition 47 was purposeful, demonstrating the voters’ intent
to exclude some theft crimes from the resentencing provisions of the law. (Ibid.)
We agree with Gonzales.
       Nothing in Proposition 47, or in the related ballot materials, indicates that the
voters intended the new law to apply to every theft and burglary crime. (People v.
Segura (2015) 239 Cal.App.4th 1282, 1284 [rejecting the argument that the “spirit”
of Proposition 47 requires the redesignation of all thefts or property involving less
than $950].) Indeed, where, as here, “the language [of the initiative] is not ambiguous,
we presume the voters intended the meaning apparent from that language, and we may
not add to the statute or rewrite it to conform to some assumed intent not apparent from
that language.” (People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 571.)
       In addition, appellant has not demonstrated that his convictions are eligible
for resentencing under Proposition 47’s new misdemeanor offenses, section 459.5
[shoplifting]2 or section 490.2 [petty theft]. 3 Proposition 47 entitles a person to relief if

2
       Section 459.5 provides, in pertinent part: “Notwithstanding Section 459,
shoplifting is defined as entering a commercial establishment with intent to commit
larceny while that establishment is open during regular business hours, where the value of
the property that is taken or intended to be taken does not exceed nine hundred fifty
dollars ($950). Any other entry into a commercial establishment with intent to commit
larceny is burglary.” (§ 459.5, subd. (a).)
3
      Section 490.2 provides, in pertinent part: “[O]btaining 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.” (§ 490.2, subd. (a).)

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he or she “would have been guilty of a misdemeanor . . . had [Proposition 47] been in
effect at the time of the offense.” (§ 1170.18, subd. (f).) Consequently, appellant’s
entitlement to resentencing on his second degree burglary convictions turns on whether
those burglaries “would have been” treated as shoplifting under section 459.5 or
petty theft under section 490.2. (See People v. Rivas–Colon (2015) 241 Cal.App.4th
444, 449 [so holding]; People v. Contreras (2015) 237 Cal.App.4th 868, 892 [same].)
Appellant shoulders the burden to show that his crimes are the equivalent of these new
misdemeanor offenses, and are thus eligible for resentencing. (People v. Sherow (2015)
239 Cal.App.4th 875, 879-880 [“A proper petition could certainly contain at least
[defendant’s] testimony about the nature of the items taken. If he made the initial
showing the court can take such action as appropriate to grant the petition or permit
further factual determination.”].)
       Here appellant has not demonstrated that his convictions are similar to the
new Proposition 47 misdemeanor offenses. Appellant did not support his petition for
resentencing with any evidence from the record of his burglary convictions. In the
petition, his counsel claimed that the value of the items taken did not exceed $950, and
at the hearing, the prosecutor stated that appellant burglarized patrons’ lockers at an
L.A. Fitness club. The record before this court, however, contains nothing to substantiate
these allegations. Moreover, with respect the application of section 459.5, appellant did
not even allege that his crimes occurred while the establishment was “open during regular
business hours.” On this basis alone, appellant is disqualified from resentencing
under section 1170.18. (See People v. Perkins (2016) 244 Cal.App.4th 129, 136-137
[defendant did not meet his burden of providing evidence to establish he was eligible for
resentencing under section 1170.18, where petition provided no information on the
nature and value of the stolen property to aid the superior court in determining whether
defendant was eligible for resentencing]; People v. Sherow, supra, 239 Cal.App.4th
at p. 877.) The trial court, therefore, properly denied his petition.




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II.    Appellant’s Punishment Does Not Violate His Right To Equal Protection.
       Appellant further contends his punishment violates his right to equal protection
because he is similarly situated to a person charged with a “simple theft” and that his
acts are categorically like a shoplifter. As explained above, however, appellant has not
demonstrated that his crimes are the equivalent to a section 459.5 shoplifting offense.
Thus, he cannot establish he is similarly situated to persons who have violated
section 459.5, which is fatal to his equal protection claim. (See People v. Brown (2012)
54 Cal.4th 314, 328-330 [the equal protection clause only applies when the state treats
similarly situated persons in a disparate manner].)
       Even if appellant satisfied the similarly-situated requirement, “‘neither the
existence of two identical criminal statutes prescribing different levels of punishments,
nor the exercise of a prosecutor’s discretion in charging under one such statute and
not the other, violates equal protection principles.’ [Citation.]” (People v. Page (2015)
241 Cal.App.4th 714, 719.) The state has considerable discretion to choose which
punishment is suitable for a particular offender when the conduct violates more than one
statute. So too does it have broad authority to decide which offenders may qualify for
leniency under a sentence reduction scheme such as Proposition 47. (Ibid.) Just because
Proposition 47 provides for the possibility of sentence reduction for a limited subset of
those previously convicted of felony theft crimes, but not those convicted of other theft
crimes, does not mean the law violates equal protection. (Id. at pp. 719-720.) Unless a
defendant seeking Proposition 47 relief can show he has been singled out for differential
treatment based on some invidious criteria, the court will not find an equal protection
violation. (Ibid.) Because appellant has not made such a showing, his equal protection
claim fails.




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                                 DISPOSITION
     The judgment is affirmed.
     NOT TO BE PUBLISHED.




                                               ROTHSCHILD, P. J.
We concur:



                  CHANEY, J.



                  LUI, J.




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