Filed 6/6/16 P. v. Crank CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO



THE PEOPLE,

         Plaintiff and Respondent,                                      E064123

v.                                                                      (Super.Ct.No. FVI1100426)

ROBERT CHARLES CRANK,                                                   OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Miriam I. Morton,

Judge. Affirmed.

         Erica Gambale, under appointment by the Court of Appeal, for defendant and

appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, and Barry Carlton and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for

Plaintiff and Respondent.




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       Defendant and appellant Robert Charles Crank petitioned to have his felony

convictions for second degree burglary of a vehicle (Pen. Code,1 § 459) and possession of

a stolen vehicle (§ 496d, subd. (a)) designated as misdemeanors pursuant to the Safe

Neighborhoods and Schools Act, enacted by the voters as Proposition 47 in the

November 2014 election. The trial court denied the petition, finding that defendant was

not eligible for resentencing under Proposition 47.

       On appeal, defendant does not contest the trial court’s ruling with respect to his

conviction for possession of a stolen vehicle, arguing only that his burglary conviction

would have been a misdemeanor under Proposition 47, and that if Proposition 47 is

construed otherwise, his equal protection rights would be violated. We affirm the trial

court’s ruling.

                    I. FACTS AND PROCEDURAL BACKGROUND

       On March 7, 2011, defendant pleaded guilty to one count of second degree

burglary of a vehicle (§ 459), and one count of possession of a stolen vehicle (§ 496d,

subd. (a)). On May 8, 2015, defendant filed a petition pursuant to Proposition 47,

seeking to reduce those felony convictions to misdemeanors. On May 29, 2015, after a

brief hearing, during which defense counsel presented no evidence or argument, the trial

court denied the petition, finding that defendant’s conviction offenses did not qualify him

for any relief under Proposition 47.




       1   Further undesignated statutory references are to the Penal Code.

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                                     II. DISCUSSION

       Defendant contends that we should construe Proposition 47 to encompass his

conviction offense of second degree burglary of a vehicle, and that to construe it

otherwise would violate his right to equal protection. We disagree with both contentions.

       “Proposition 47 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). Proposition 47 (1) added chapter 33 to the Government

Code (§ 7599 et seq.), (2) added sections 459.5, 490.2, and 1170.18 to the Penal Code,

and (3) amended Penal Code sections 473, 476a, 496, and 666 and Health and Safety

Code sections 11350, 11357, and 11377.” (People v. Rivera (2015) 233 Cal.App.4th

1085, 1091.) Section 1170.18 provides, among other things, that “persons who have

completed felony sentences for offenses that would now be misdemeanors under

Proposition 47 may file an application with the trial court to have their felony convictions

‘designated as misdemeanors.’” (Rivera, supra, at p. 1093.)

       A person who “enters any . . . vehicle as defined by the Vehicle Code, when the

doors are locked . . . with intent to commit grand or petit larceny or any felony is guilty of

burglary.” (§ 459.) Section 460 provides that burglary of a vehicle is burglary of the

second degree. (§ 460, subds. (a), (b).)

       Burglary of a vehicle is not an offense that has been explicitly reduced to a

misdemeanor under the statutory provisions added or amended by Proposition 47.

Section 459.5, added by Proposition 47, redefines a limited subset of offenses that would

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formerly have been burglary to be the new offense of shoplifting, committed by “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).” (§ 459.5, subd.

(a).) Section 459.5 makes no reference to any other type of burglary, however, and on its

face “provides no reason to believe that burglary of a locked motor vehicle is now a

misdemeanor when the loss does not exceed $950.” (People v. Acosta (2015) 242

Cal.App.4th 521, 526-527 (Acosta).)

       Defendant contends his burglary conviction falls under the theft-related provisions

of section 490.2. We disagree. Section 490.2 provides that, notwithstanding any

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,”

except when committed by certain recidivists. (§ 490.2, subd. (a).) Burglary of a motor

vehicle, however, is not “merely another form of theft, as theft is not an element of the

offense. . . . ‘[T]he crime of burglary can be committed without an actual taking, as

opposed to the crimes of theft, robbery, and carjacking.’” (Acosta, supra, 242

Cal.App.4th at p. 526.) Section 490.2 is simply inapplicable to defendant’s conviction

offense. (Acosta, supra, at p. 526.)

       Defendant argues that, if section 490.2 “is construed to exclude second degree

vehicle burglary, then the omission violated his constitutional rights to equal protection

under the law.” Not so. Among other fatal flaws in defendant’s equal protection

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argument, “offenders who commit different crimes are similarly situated for equal

protection analysis when the crimes are not sufficiently different to justify different

treatment.” (People v. Doyle (2013) 220 Cal.App.4th 1251, 1266.) Burglary of a vehicle

is sufficiently different from theft or receiving stolen property, or even the new offense of

shoplifting (all offenses defendant points to in briefing) to justify different treatment.

Vehicular burglary necessarily involves “‘unlawfully altering the vehicle’s locked state,’”

and thus “‘altering the vehicle’s physical condition; at worst, by smashing a window, at

best, by illegally unlocking it.’” (In re James B. (2003) 109 Cal.App.4th 862, 868.) In

other words, in the burglary of a vehicle, some degree of force is necessarily applied.

This element of force justifies both different punishment in the first instance, and

different treatment under Proposition 47. For this reason, among others, defendant has

demonstrated no violation of his equal protection rights. (See also Acosta, supra, 242

Cal.App.4th at pp. 527-528 [rejecting similar equal protection challenge].)

                                       III. DISPOSITION

       The order appealed from is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                                 HOLLENHORST
                                                                          Acting P. J.
We concur:

       MILLER
                                  J.

       SLOUGH
                                  J.


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