Filed 9/2/16 P. v. Cardoso 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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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,

v.

ESTEBAN GARCIA CARDOSO,

 Defendant and Appellant.

 G051830

 (Super. Ct. No. 04WF1219)

 O P I N I O N

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.
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Esteban Garcia Cardoso petitioned the superior court for reduction of his 

felony conviction for second degree burglary of a vehicle (Pen. Code, § 459)

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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.