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Name: People v. Acosta
Case #: B261828
Court: CA Court of Appeal
District 2 DCA
Division: 5
Opinion Date: 11/20/2015

The offense of felony attempted auto burglary (Pen. Code, §§ 664, 459) is not subject to reduction to a misdemeanor under Proposition 47. In 2014, appellant filed a petition seeking reduction of his felony attempted auto burglary to a misdemeanor under Proposition 47. It was denied and he appealed. Held: Affirmed. Proposition 47 reduced certain drug and theft offenses to misdemeanors. Penal Code section 1170.18, which lists the offenses that may be reduced to misdemeanors, does not include car burglary or its attempt. Penal Code section 490.2, which was enacted as part of Proposition 47, makes obtaining any property by theft a misdemeanor where the value of the property does not exceed $ 950. But burglary of a motor vehicle (Pen. Code, § 459) is not included within the reach of section 490.2 because theft is not an element of the offense. Auto burglary is committed by entry into a locked vehicle with the intent to commit grand or petit larceny; it may be committed without an actual taking.

The new offense of misdemeanor shoplifting (Pen. Code, § 459.5), does not reflect that Proposition 47 was intended to apply to burglaries. Section 459.5 applies to offenders who enter an open commercial establishment during regular business hours, with intent to commit larceny. It does not reference any other type of burglary offenses, and auto burglary does not fall within the definition of misdemeanor shoplifting.

Appellant is not denied equal protection because Proposition 47 does not apply to his attempted vehicle burglary, even though grand theft of an automobile with a value of $950 or less is subject to reduction to a misdemeanor. Appellant argued he was denied equal protection because a conviction of grand theft of a vehicle worth $950 or less is now a misdemeanor under Proposition 47 (Pen. Code, § 490.2). His claim failed under the rational basis test because the Legislature has considerable latitude in determining the consequences of criminal acts. The electorate could rationally extend misdemeanor treatment to some nonviolent offenses and not to others “as a means of testing whether Proposition 47 has a positive or negative impact on the criminal justice system.” Further, the electorate could have concluded that car burglary should be treated more harshly than vehicle theft because it requires entry into a locked vehicle, which is not an element of vehicle theft.