People v. Espinoza CA2/4

Filed 12/4/15 P. v. Espinoza CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, B261577

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. VA034662) v.

RODOLFO MADERA ESPINOZA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, William C. Ryan, Judge. Affirmed. Richard L. Fitzer, 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, Scott A. Taryle, and Kimberley J. Baker-Guillemet, Deputy Attorneys General, for Plaintiff and Respondent.

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Rodolfo Madera Espinoza appeals the denial of his resentencing petition pursuant 1 to Penal Code section 1170.18. He contends the court erroneously denied his resentencing petition because (1) his conviction for attempted auto burglary (§§ 664/459) is properly considered a theft offense; and (2) the equal protection clause requires that the conviction be treated the same as a conviction for attempted grand theft of an automobile (§§ 664/487, subd. (d)(1)). We affirm. FACTUAL AND PROCEDURAL SUMMARY Norwalk sheriff deputies received a call regarding two males breaking into a vehicle on October 28, 1995. A deputy responded to the location and observed Espinoza and another male squatting next to the passenger door of a 1986 blue Oldsmobile. After seeing the deputy, Espinoza and the other male fled from the location. Espinoza was apprehended after he fell to the ground while attempting to climb over a wall. One screwdriver was found stuck in the passenger door of the Oldsmobile; another was lying on the ground next to the passenger door. The People charged Espinoza with attempted second degree burglary. A jury found Espinoza guilty as charged. Espinoza had two prior strikes and was sentenced to 25 years to life. Espinoza’s conviction was affirmed in People v. Espinoza (1997) 58 Cal.App.4th 248, 252. In November 2014, Espinoza petitioned to recall his sentence and for resentencing pursuant to section 1170.18. In opposition, the People argued that although Espinoza “appears to be eligible, he is unsuitable for re-sentencing as he ‘poses an unreasonable risk of danger to public safety.’” The court denied the resentencing petition, concluding that Espinoza’s conviction for attempted burglary is not one of the sections enumerated under section 1170.18. This timely appeal followed.