People v. Rodriguez CA2/1

Filed 11/17/15 P. v. Rodriguez CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B261067

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA103584) v.

GUILLERMO RODRIGUEZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles, Wade D. Olson, Commissioner. Affirmed. Myra Sun, under appointment by the Court of Appeal, for Defendant and Rodriguez. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Rama R. Maline and Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent. ——————————

We affirm the trial court’s order denying Guillermo Rodriguez’s motion for recall and resentencing under Proposition 47. Rodriguez is not eligible to have his conviction of felony second degree burglary (Pen. Code, § 4591) reduced to a misdemeanor, because second degree burglary is not one of the offenses set forth in the governing statute, section 1170.18. Further, we reject Rodriguez’s assertions that the voters who enacted the Safe Neighborhoods and Schools Act intended to include second degree burglary as a felony to be reduced to a misdemeanor and that his equal protection rights were violated. Accordingly, we affirm the order. BACKGROUND The November 27, 2013 information alleged that, on October 29, 2013, Guillermo Rodriguez committed second degree burglary of an automobile in violation of section 459, a felony. The information further alleged that Rodriguez had been convicted of two strike offenses, carjacking (§ 215) and robbery (§ 211), and that Rodriguez had served three separate prison terms for carjacking, robbery, and possession and sale of a controlled substance. (Health & Saf. Code, §§ 11378, 11377, subd. (a).) At the preliminary hearing, witnesses testified that Rodriguez had taken a car stereo from the victim’s 1999 Honda Civil automobile. After Rodriguez’s motion to suppress evidence was denied, Rodriguez entered a plea of guilty to felony second degree burglary (§ 459). The trial court imposed a sentence of two years eight months, with custody credits, fees and fines. We affirmed the judgment on direct appeal and denied Rodriguez’s petition for writ of habeas corpus. (People v. Rodriguez (Nov. 25, 2014, B254064) [nonpub. opn.].) On November 24, 2014, Rodriguez filed a petition for recall and resentencing, which the court denied on December 11, 2014. Rodriguez filed a timely appeal.