Filed 8/21/17 P. v. Zuniga CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Victor Zuniga, Jr., challenges the superior court’s denial of his Penal Code section 1170.18[1] petition seeking to have his 1994 auto burglary (§ 459) conviction reduced to a misdemeanor. The superior court concluded that auto burglary does not fall within the provisions of section 1170.18. On appeal, defendant contends that auto burglary qualifies for treatment under section 1170.18 because it falls within section 490.2. He also claims that, should we find that auto burglary does not fall within section 490.2, the distinction between auto burglary and theft of a vehicle (§§ 487, subd. (d), 490.2) violates equal protection. We reject both his primary and alternative contentions and affirm the superior court’s order.

I. Background

In 1994, defendant pleaded guilty to an auto burglary count charging him with having entered a locked motor vehicle with the intent to commit larceny. He was placed on probation and ordered to pay victim restitution of $340. After he violated his probation, defendant was committed to state prison for the upper term of three years.

In 2015, defendant filed a section 1170.18 petition seeking to have his 1994 auto burglary conviction redesignated as a misdemeanor. The prosecutor opposed the petition on the ground that section 1170.18 does not apply to auto burglary. The court agreed and denied the petition. Defendant timely filed a notice of appeal from the court’s order.

II. Analysis

Defendant claims that his auto burglary conviction falls within section 1170.18 because it was a theft offense within the meaning of section 490.2.

Section 1170.18 permits redesignation of a felony conviction as a misdemeanor if the offense was reclassified as a misdemeanor by Proposition 47. (§ 1170.18.) Auto burglary was not reclassified as a misdemeanor by Proposition 47. One of the statutes enacted by Proposition 47 was section 490.2. It provides: “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 [with exceptions not relevant here].” (§ 490.2, subd. (a), italics added.)

Section 459 provides: “Every 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, italics added.) An auto burglary violation of section 459 does not fall within section 490.2 because section 459 is not a “provision of law defining grand theft,” nor does section 459 prohibit an offense involving “obtaining any property by theft.” Section 459 is exclusively aimed at entries. The crime of auto burglary is not a theft offense of any kind and does not involve obtaining any property.

Defendant acknowledges that his contention has been rejected by the Second District Court of Appeal in People v. Acosta (2015) 242 Cal.App.4th 521 (Acosta). He asks us to reject Acosta. We refuse to do so because the Second District’s reasoning in Acosta is consistent with our analysis. “Acosta is incorrect in his assertion that burglary of a motor vehicle is merely another form of theft, as theft is not an element of the offense.” (Acosta, at p. 526.)

Defendant’s alternative contention is that the distinction drawn by Proposition 47 between an auto burglary offense and a theft of a vehicle offense (§§ 487, subd. (d), 490.2) violates equal protection.

A statutory distinction between two groups in the length of imprisonment is subjected to rational basis review. (People v. Wilkinson (2004) 33 Cal.4th 821, 838; People v. Turnage (2012) 55 Cal.4th 62, 74 (Turnage).) Rational basis review is very deferential. “When conducting rational basis review, we must accept any gross generalizations and rough accommodations that the Legislature [or the electorate] seems to have made. A classification is not arbitrary or irrational simply because there is an ‘imperfect fit between means and ends.’ ” (Turnage, at p. 77.)

Defendant maintains that there is no rational basis for the electorate’s decision to retain wobbler status for all auto burglary offenses while reducing to a misdemeanor those vehicle theft offenses in which the vehicle was worth no more than $950. We can see multiple rational bases for the electorate’s decision to continue to treat all auto burglary offenses as wobblers while at the same time reducing to misdemeanors those few vehicle theft cases in which the stolen vehicle is worth no more than $950.[2] A vehicle theft offense does not require a person to have entered a “locked” vehicle. The electorate could have reasonably concluded that those who enter locked vehicles commit a more serious offense than those who enter unlocked vehicles. An entry into a locked vehicle not only reflects the perpetrator’s disregard for the vehicle owner’s attempt to secure the vehicle, but it also often causes substantial damage to the vehicle. The simple taking of an unlocked vehicle does not necessarily involve either. In addition, because auto burglary does not require any theft from the vehicle, the electorate could have reasoned that it would be difficult to craft a statutory formula that would properly distinguish between those auto burglary offenses that merit misdemeanor treatment and those that merit felony treatment when there may be no property taken from the vehicle at all but the entry may have caused substantial damage to the vehicle.

Defendant argues: “The main difference between grand theft of an automobile (Pen. Code, § 487, subd. (d)(1)) and auto burglary (Pen. Code, § 459) is the property taken: in Penal Code section 487(d)(1) it would be the car itself, and in an auto burglary it may be the car itself or personal property taken from the car. (Pen. Code, § 459.) So a person convicted of auto burglary is, in fact, similarly situated to a person convicted of vehicle theft.” This argument disregards the differences between burglary and theft. An auto burglary offense does not require the taking of any property or the car. It requires only an entry, with the necessary intent, into a locked vehicle. As we have explained above, the electorate’s distinction between auto burglary and vehicle theft is supported by a rational basis.

III. Disposition

The order is affirmed.

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Mihara, J.

WE CONCUR:

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Elia, Acting P. J.

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Bamattre-Manoukian, J.