People v. Robinson CA2/1

Filed 2/29/16 P. v. Robinson CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B261644

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA101498) v.

MARK ROBINSON,

Defendant and Appellant.

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. ______

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.