Filed 4/12/16 P. v. Bartlett 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G051340

         v.                                                            (Super. Ct. No. 14NF3896)

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, Julie L. Garland, Assistant Attorney
General, Eric A. Swenson and Daniel Hilton, 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
conviction for second degree vehicle burglary to a misdemeanor. (All further statutory
references are to the Penal Code.) Bartlett argues that his conviction for vehicle burglary
falls within the 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. For the reasons we will explain, Proposition 47 does not apply
to vehicle burglary in violation of section 459. Section 459 is not included in the list of
statutes contained in section 1170.18, defining felonies that qualify for redesignation as
misdemeanors. Vehicle burglary does not constitute a theft-related offense within the
meaning of section 490.2 and thus does not qualify for redesignation to a misdemeanor
under that statute either. We reject Bartlett’s equal protection argument because he has
failed to show he is similarly situated to the class of persons convicted of stealing a
vehicle valued at no more than $950, who might qualify to have their felony convictions
redesignated as misdemeanors under Proposition 47. Bartlett has not carried his burden
of showing the property that he stole in the course of committing the vehicle burglary
offense had a value of no more than $950.


                                       BACKGROUND
              In September 2014, Bartlett was charged in a felony complaint with one
count of second degree vehicle burglary, a felony, in violation of sections 459 and 460,
subdivision (b). He pleaded guilty as charged, stating the following as the factual basis
of his plea: “In Orange County, California, on December 5, 2013 I knowingly &

                                              2
unlawfully entered the vehicle of Yakub D. w/ the intent to steal & did steal.” The trial
                                                 1
court sentenced Bartlett to 16 months in jail.
              In November 2014, Bartlett filed a petition under section 1170.18,
subdivision (a), seeking to have his felony conviction recalled and reduced to a
misdemeanor (the petition). The People opposed the petition on the ground vehicle
burglary is not eligible for such a reduction. The trial court denied the petition, stating it
“falls outside of the confines of Prop 47.” 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.)


                                              II.
     Proposition 47 Does Not Apply to Vehicle Burglary in Violation of Section 459.
              Bartlett was convicted of vehicle burglary in violation of section 459.
Section 459 is not included in section 1170.18, subdivision (a)’s list of statutes defining
 1
   The court ordered Bartlett’s jail sentence to run concurrently with the sentence that he
had received in another case, case No. 14NF4151.

                                               3
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 vehicle burglary from the enumerated
offenses in section 1170.18, subdivision (a), Bartlett argues that his conviction for vehicle
burglary qualifies as a theft-related offense within the meaning of section 490.2 and,
therefore, under that statute, his conviction is eligible for redesignation from a felony to a
misdemeanor. 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.”
              Bartlett was not charged with theft of any degree, whether grand or petty
theft, but with vehicle burglary. Rejecting the same argument advanced in this case by
Bartlett, the appellate court in People v. Acosta, supra, 242 Cal.App.4th at page 526,
pointed out that “theft is not an element of the offense” of vehicle burglary. Section 459
defines vehicle burglary as the entering into a “vehicle as defined by the Vehicle Code,
when the doors are locked . . . with intent to commit grand or petit larceny or any felony.”
The court in People v. Acosta, supra, 242 Cal.App.4th at page 526, explained: “‘[T]he
crime of burglary can be committed without an actual taking, as opposed to the crimes of
theft, robbery, and carjacking.’ [Citation.] ‘[C]arjacking, like theft and robbery, and
unlike burglary, is a crime centered on the felonious taking of property.’ [Citation.] [The
defendant]’s comparison of burglary of a motor vehicle to theft offenses fails. [¶]
Because nothing in the language of Proposition 47 suggests it applies to [the defendant]’s
crime[ (vehicle burglary in violation of section 459)], there is no merit to his argument

                                              4
that reclassifying his offense as a misdemeanor is required in order to comply with the
express intent of liberal construction of Proposition 47. One aspect of the express intent
of Proposition 47 is to ‘reduce[] penalties for certain offenders convicted of nonserious
and nonviolent property and drug crimes.’ (Voter Information Guide, Gen. Elec. (Nov. 4,
2014) analysis of Prop. 47 by Legis. Analyst, p. 35, italics added.) [The defendant] is not
a member of the class of ‘certain offenders’ expressly enumerated in Proposition 47.”
              We agree with the analysis of People v. Acosta and similarly hold that
Proposition 47 does not apply to vehicle burglary in violation of section 459.


                                             III.
       Bartlett’s Constitutional Right to Equal Protection Has Not Been Violated.
              In his opening brief, Bartlett argues: “The Equal Protection Clause of the
Fourteenth Amendment demands application of the provisions of Penal Code
sections 490.2 and 1170.18 to [Bartlett]. Under the clear language of Proposition 47, the
protections and relief of Penal Code sections 490.2 and 1170.18 are afforded to those
who actually stole a vehicle valued at $950 or less because Penal Code section 490.2 is
specifically listed in the provisions of Proposition 47. Section 490.2 applies
‘[n]otwithstanding Section 487,’ the grand theft statute. The Equal Protection Clause
requires those same protections and relief be afforded to one who entered the same
vehicle with only the intent to steal items from within. In this case, the Equal Protection
Clause requires [Bartlett]’s auto burglary conviction be reduced to a misdemeanor.”
              “‘“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

                                              5
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.)
              Here, Bartlett is not similarly situated to a person convicted of stealing a
vehicle valued at no more than $950. He was convicted of vehicle burglary which, as
discussed ante, does not include theft as an element. Vehicle burglary in violation of
section 459 involves entering a locked vehicle with the intent to steal or commit a felony
therein. Bartlett admitted he stole property from inside the vehicle, but our record does
not show the value of that property. There is nothing in Bartlett’s plea or any finding of
fact that establishes the property he stole in the course of the vehicle burglary had a value
of $950 or less.
              Even assuming for purposes of argument that Bartlett’s conviction for
vehicle burglary constituted a theft-related offense within the meaning of section 490.2,
in order to avail himself of the benefits of redesignation of the offense as a misdemeanor
he had to prove he stole property valued at $950 or less. (See People v. Sherow (2015)
239 Cal.App.4th 875, 879-880 [section 1170.18 places the burden on the petitioner to
show that the value of the item at issue did not exceed $950].) Because the record does
not show the value of the stolen property taken in the course of the vehicle burglary,
Bartlett has failed to show he is similarly situated to persons who steal vehicles valued at
no more than $950, and who, he contends, received unequal treatment under
Proposition 47. We therefore reject his equal protection challenge.




                                              6
                                   DISPOSITION
            The postjudgment order is affirmed.




                                             FYBEL, ACTING P. J.

WE CONCUR:



IKOLA, J.



THOMPSON, J.




                                         7
