Filed 2/29/16 P. v. Robinson CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

MARK ROBINSON,

Defendant and Appellant.

 B261644

 (Los Angeles County

 Super. Ct. No. KA101498)

APPEAL from a judgment of the Superior Court of Los Angeles County. Wade 

Olson, Commissioner. Affirmed.

______

Myra Sun, under appointment by the Court of Appeal, for Defendant and 

Appellant.

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

General, Lance E. Winters, Assistant Attorney General, Mary Sanchez and Andrew S. 

Pruitt, Deputy Attorneys General, for Plaintiff and Respondent.

______
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Appellant Mark Robinson appeals from the trial court’s denial of his petition for 

recall of his sentence and resentencing under Penal Code section 1170.181, on his 

convictions of three counts of felony second degree burglary. He argues that the trial 

court should have resentenced him because Proposition 47, the Safe Neighborhood 

and Schools Act, reclassifies his crimes as misdemeanors. He further claims that if 

section 1170.18 does not require resentencing, equal protection entitles him nonetheless 

to resentencing because he is similarly situated to a person whose criminal conduct falls 

within Proposition 47. We disagree. Proposition 47 does not reclassify all commercial 

burglaries as misdemeanors, and appellant failed to carry his burden to show that his 

crimes would qualify for resentencing. Appellant also has not demonstrated that his 

sentence violates equal protection. Accordingly, we affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

On April 9, 2014, the trial court sentenced appellant to three years in prison 

under section 1170, subdivisions (h)(1) and (h)(2) based on conviction of three counts 

of violating section 459, second degree burglary. On December 1, 2014, appellant filed a 

petition for recall of his sentence and resentencing under section 1170.18. Appellant did 

not support his petition with any evidence disclosing the nature or circumstances of his 

burglary convictions. His counsel, however, alleged that “according to the arrest report” 

the value of the items taken was under $950. During the hearing on the petition, the 

prosecutor stated that appellant’s convictions involved “burglary at L.A. Fitness of the 

patrons’ lockers.” The trial court denied the petition. Appellant timely appeals.

DISCUSSION

I. The Trial Court Did Not Err In Denying Appellant’s Petition.

Appellant’s burglary convictions under section 459 are not among the enumerated 

offenses that are now classified as misdemeanors by Proposition 47 and thus, are not 

eligible for reclassification under section 1170.18. (See § 1170.18, subd. (a).) Appellant 

argues, however, that the voters intended Proposition 47 to apply to crimes in addition to 

 

1 All statutory references are to the Penal Code unless otherwise indicated. 
3

those expressly enumerated in section 1170.18. He maintains that all second degree

burglaries from commercial establishments of property valued less than $950 should be 

reclassified under Proposition 47 to fulfill the voters’ intent to treat all nonserious, 

nonviolent crimes as misdemeanors.

Recently in People v. Gonzales (2015) 242 Cal.App.4th 35, 40, Division One

of the Fourth District Court of Appeal rejected this argument. The court concluded that 

under the statutory interpretation principle of unius est exclusion alterius, the omission of 

certain theft crimes from Proposition 47 was purposeful, demonstrating the voters’ intent 

to exclude some theft crimes from the resentencing provisions of the law. (Ibid.) 

We agree with Gonzales.

Nothing in Proposition 47, or in the related ballot materials, indicates that the 

voters intended the new law to apply to every theft and burglary crime. (People v. 

Segura (2015) 239 Cal.App.4th 1282, 1284 [rejecting the argument that the “spirit” 

of Proposition 47 requires the redesignation of all thefts or property involving less 

than $950].) Indeed, where, as here, “the language [of the initiative] is not ambiguous, 

we presume the voters intended the meaning apparent from that language, and we may 

not add to the statute or rewrite it to conform to some assumed intent not apparent from 

that language.” (People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 571.)

In addition, appellant has not demonstrated that his convictions are eligible 

for resentencing under Proposition 47’s new misdemeanor offenses, section 459.5

[shoplifting]2or section 490.2 [petty theft]. 3Proposition 47 entitles a person to relief if 

 

2

Section 459.5 provides, in pertinent part: “Notwithstanding Section 459, 

shoplifting is defined as 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). Any other entry into a commercial establishment with intent to commit 

larceny is burglary.” (§ 459.5, subd. (a).)

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Section 490.2 provides, in pertinent part: “[O]btaining 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.” (§ 490.2, subd. (a).)
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he or she “would have been guilty of a misdemeanor . . . had [Proposition 47] been in 

effect at the time of the offense.” (§ 1170.18, subd. (f).) Consequently, appellant’s 

entitlement to resentencing on his second degree burglary convictions turns on whether 

those burglaries “would have been” treated as shoplifting under section 459.5 or 

petty theft under section 490.2. (See People v. Rivas–Colon (2015) 241 Cal.App.4th 

444, 449 [so holding]; People v. Contreras (2015) 237 Cal.App.4th 868, 892 [same].) 

Appellant shoulders the burden to show that his crimes are the equivalent of these new 

misdemeanor offenses, and are thus eligible for resentencing. (People v. Sherow (2015) 

239 Cal.App.4th 875, 879-880 [“A proper petition could certainly contain at least 

[defendant’s] testimony about the nature of the items taken. If he made the initial 

showing the court can take such action as appropriate to grant the petition or permit 

further factual determination.”].)

Here appellant has not demonstrated that his convictions are similar to the

new Proposition 47 misdemeanor offenses. Appellant did not support his petition for 

resentencing with any evidence from the record of his burglary convictions. In the 

petition, his counsel claimed that the value of the items taken did not exceed $950, and 

at the hearing, the prosecutor stated that appellant burglarized patrons’ lockers at an

L.A. Fitness club. The record before this court, however, contains nothing to substantiate 

these allegations. Moreover, with respect the application of section 459.5, appellant did 

not even allege that his crimes occurred while the establishment was “open during regular 

business hours.” On this basis alone, appellant is disqualified from resentencing 

under section 1170.18. (See People v. Perkins (2016) 244 Cal.App.4th 129, 136-137

[defendant did not meet his burden of providing evidence to establish he was eligible for 

resentencing under section 1170.18, where petition provided no information on the 

nature and value of the stolen property to aid the superior court in determining whether 

defendant was eligible for resentencing]; People v. Sherow, supra, 239 Cal.App.4th 

at p. 877.) The trial court, therefore, properly denied his petition.
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II. Appellant’s Punishment Does Not Violate His Right To Equal Protection.

Appellant further contends his punishment violates his right to equal protection 

because he is similarly situated to a person charged with a “simple theft” and that his 

acts are categorically like a shoplifter. As explained above, however, appellant has not 

demonstrated that his crimes are the equivalent to a section 459.5 shoplifting offense. 

Thus, he cannot establish he is similarly situated to persons who have violated 

section 459.5, which is fatal to his equal protection claim. (See People v. Brown (2012) 

54 Cal.4th 314, 328-330 [the equal protection clause only applies when the state treats 

similarly situated persons in a disparate manner].)

Even if appellant satisfied the similarly-situated requirement, “‘neither the 

existence of two identical criminal statutes prescribing different levels of punishments, 

nor the exercise of a prosecutor’s discretion in charging under one such statute and 

not the other, violates equal protection principles.’ [Citation.]” (People v. Page (2015) 

241 Cal.App.4th 714, 719.) The state has considerable discretion to choose which 

punishment is suitable for a particular offender when the conduct violates more than one 

statute. So too does it have broad authority to decide which offenders may qualify for 

leniency under a sentence reduction scheme such as Proposition 47. (Ibid.) Just because 

Proposition 47 provides for the possibility of sentence reduction for a limited subset of 

those previously convicted of felony theft crimes, but not those convicted of other theft 

crimes, does not mean the law violates equal protection. (Id. at pp. 719-720.) Unless a 

defendant seeking Proposition 47 relief can show he has been singled out for differential 

treatment based on some invidious criteria, the court will not find an equal protection 

violation. (Ibid.) Because appellant has not made such a showing, his equal protection 

claim fails.
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DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.

We concur:

CHANEY, J.

LUI, J.