Filed 9/2/16 P. v. Cardoso CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G051830

         v.                                                            (Super. Ct. No. 04WF1219)

ESTEBAN GARCIA CARDOSO,                                                OPINION

     Defendant and Appellant.



                   Appeal from a postjudgment order of the Superior Court of Orange County,
Kazuharu Makino, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief
Justice pursuant to art. VI, § 6 of the Cal. Const.) 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, Julie L. Garland, Assistant Attorney General, Barry Carlton and
Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
              Esteban Garcia Cardoso petitioned the superior court for reduction of his
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felony conviction for second degree burglary of a vehicle (Pen. Code, § 459) to a
misdemeanor pursuant to the Safe Neighborhoods and Schools Act, enacted by the voters
as Proposition 47 in the November 2014 election. (§ 1170.18.) The trial court denied the
petition, finding Cardoso’s conviction was not eligible for resentencing. We affirm the
postjudgment order because vehicle burglary is not one of offenses redesignated as
misdemeanors by Proposition 47, and we reject Cardoso’s contention its omission from
those offenses violated his right to equal protection under the law.
                                          FACTS
              In 2005 Cardoso entered a guilty plea, admitting he broke into a locked
Nissan Sentra with the intent to commit larceny. At the time, he was acting for the
benefit of a criminal street gang. He also admitted to battery of a police officer, causing
him injury. He also admitted having a prior conviction within the meaning of section
667.5, subdivision (b). The trial court sentenced Cardoso to four years and eight months
in prison.
              In 2015 Cardoso filed, and the trial court denied, his petition to have the
second degree vehicle burglary conviction reduced to a misdemeanor under the newly
enacted Proposition 47. The court found the crime of vehicle burglary did not qualify
under Proposition 47.
                                      DISCUSSION
              Cardoso argues his conviction for second degree vehicle burglary is a theft
offense and falls within the meaning of Proposition 47. He recognizes vehicle burglary is
not a specifically enumerated felony that may be redesignated as a misdemeanor, but
notes theft (§ 490.2) and shoplifting (§ 459.5) of goods valued less than $950 are subject
to redesignation under the new law. He asserts Proposition 47 “contains sweeping

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

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language clearly intended to include all thefts of personal property in which the value of
loss was $950 or less.” He concludes a vehicle burglary conviction should be treated as a
qualifying theft offense for purposes of Proposition 47. We conclude the argument lacks
merit.
              Section 459 is not included in section 1170.18’s specific list of felony
offenses that qualify for redesignation as misdemeanors under Proposition 47. “The
ameliorative provisions of Proposition 47 apply to ‘[s]ections 11350, 11357, or 11377 of
the Health and Safety Code, or [s]ection[s] 459.5, 473, 476a, 490.2, 496, or 666 of the
Penal Code, as those sections have been amended or added by this act.’ (§ 1170.81.)”
(People v. Acosta (2015) 242 Cal.App.4th 521, 526 (Acosta).) Thus, under this clear
statutory language, vehicle burglary is not specified for redesignation as a misdemeanor.
And as aptly stated in Acosta, “Because nothing in the language of Proposition 47
suggests it applies to [the crime of vehicle burglary], there is no merit to [the] argument
that reclassifying [this] 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.) [Those convicted of
vehicle burglary are] not a member of the class of ‘certain offenders’ expressly
enumerated in Proposition 47.” (Id. at p. 526.)
              We are not persuaded by Cardoso’s argument his felony conviction is
nonetheless so similar to a theft offense that it warrants the same treatment despite the
statutory language. The court in Acosta addressed and rejected this same contention.
That court explained, “[B]urglary of a motor vehicle is [not] merely another form of theft,
as theft is not an element of the offense. Burglary of a motor vehicle is committed by
entry into a ‘vehicle as defined by the Vehicle Code, when the doors are locked . . . with
intent to commit grand or petit larceny.’ (§ 459.) ‘[T]he crime of burglary can be

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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.] Acosta’s comparison of
burglary of a motor vehicle to theft offenses fails. [¶] Because nothing in the language
of Proposition 47 suggests it applies to Acosta’s crime, there is no merit to his argument
that reclassifying his offense as a misdemeanor is required in order to comply with the
express intent of liberal construction of Proposition 47.” (Acosta, supra, 242 Cal.App.4th
at p. 526.) We agree with and follow this well reasoned analysis.
              We turn next to Cardoso’s equal protection argument. This same argument
was also considered and rejected in the Acosta case. Cardoso, like defendant in Acosta,
maintained equal protection principles mandated that he receive the same treatment under
Proposition 47, as other offenders having a similar level of culpability. Applying the
rational basis standard, the Acosta court explained, “the electorate could rationally extend
misdemeanor punishment to some nonviolent offenses but not to others, as a means of
testing whether Proposition 47 has a positive or negative impact on the criminal justice
system. ‘Nothing compels the state “to choose between attacking every aspect of a
problem or not attacking the problem at all.” [Citation.] Far from having to “solve all
related ills at once” [citation], the Legislature has “broad discretion” to proceed in an
incremental and uneven manner without necessarily engaging in arbitrary and unlawful
discrimination. [Citations.]’ [Citation.]” (Acosta, supra, 242 Cal.App.4th
at pp. 527-528.)
              In addition, the Acosta court determined that as a “practical matter” the
equal protection argument assumes an unlikely disparity. “The electorate could rationally
expect there will be an insignificant number of vehicle thefts involving a loss not
exceeding $950, considering the present day value of vehicles. It is therefore probable
that after Proposition 47 most prosecutions for car burglary and vehicle theft will be
subject to the same felony/misdemeanor punishment. To the extent some number of

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vehicle thefts may be treated as misdemeanors while car burglaries or attempted car
burglaries are subject to felony punishment, the electorate could rationally conclude that
car burglary should be treated more harshly because entry must be made into a locked
vehicle, an element not required of vehicle theft. And finally, because attempted car
burglary is an alternate felony/misdemeanor, in cases involving a loss less than $950 the
electorate could reasonably expect that prosecutorial discretion will often result in
prosecution as a misdemeanor rather than a felony. These reasons, individually and
collectively, provide a rational basis for treating attempted car burglary differently than
vehicle theft.” (Acosta, supra, 242 Cal.App.4th at p. 528.) We agree. These points
dispose of Cardoso’s equal protection challenges.
                                      DISPOSITION
              The postjudgment order is affirmed.




                                                  O’LEARY, P. J.

WE CONCUR:



FYBEL, J.



THOMPSON, J.




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