People v. Terry

• Decision Date: 11 July 1996
• Docket Number: No. A068992,A068992
• Citation: 47 Cal.App.4th 329,54 Cal.Rptr.2d 769
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 5196, 96 Daily Journal D.A.R. 8353 The PEOPLE, Plaintiff/Respondent, v. Roosevelt Jeffery TERRY, Defendant/Appellant.

Page 769

54 Cal.Rptr.2d 769

47 Cal.App.4th 329, 96 Cal. Daily Op. Serv. 5196,

96 Daily Journal D.A.R. 8353

The PEOPLE, Plaintiff/Respondent, v. Roosevelt Jeffery TERRY, Defendant/Appellant.

No. A068992.

Court of Appeal, First District, Division 5, California.

July 11, 1996.

Certified for Partial Publication. ^*

Review Denied Oct. 2, 1996.

Cynthia A. Thomas, Executive Director, Kathleen Kahn, Staff Attorney First District Appellate Project, for Appellant.

Daniel E. Lungren, California Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Joan Killeen, Supervising Deputy Attorney General, Allan Yannow, Deputy Attorney General, for Respondent.

PETERSON, Presiding Justice.

In this case we will hold that the crime of petty theft with a prior (PEN.CODE, §§ 484¹, 486, 666) can constitute a felony offense within the meaning of the three strikes sentencing law.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant in this action, Roosevelt Jeffery Terry, was convicted of stealing a purse at a service station. The victim momentarily left her car to pay for her gas. While she was gone, appellant reached inside the car and stole her purse. When the woman realized what had happened, she called the police. Appellant was apprehended shortly thereafter. He asked the officer who caught him, " '[I]f I show you where the stuff is at, will I have to go to jail?' "

Based on these facts, an information was filed charging appellant with, inter alia, one count of petty theft with a prior. The information also alleged that appellant had two prior serious felony convictions within the meaning of the three strikes law (§ 667, subds. (d) and (e)), and that appellant had served a prior prison term within the meaning of section 667.5, subdivision (b).

The case was tried before a jury which convicted appellant on the offense noted above. The jurors also found true the prior conviction and prior prison term allegations. The court thereafter sentenced appellant to a term of 25 years to life in prison. This appeal followed.

II. DISCUSSION

A. Three Strikes Issues

1. Discretion to Dismiss the Strike Allegations ^**

2. Whether Petty Theft With a Prior Can Be a Felony Under the Three Strikes Law

If, on remand, the court should decline to exercise its authority to strike both of the prior conviction allegations, or if the court should decide to strike only one of those priors, it will undoubtedly be called upon to address another argument appellant has advanced on this appeal: whether the crime of petty theft with a prior can be deemed a felony under the three strikes law. To provide the court with guidance should the issue arise, we address that argument now.

The sentencing directives of section 667, subdivision (e) apply when "a defendant has been convicted of a felony ...." (§ 667, subd. (c).) Whether a crime is a felony or a lesser offense is often dependent upon the type of punishment that is statutorily mandated. As Witkin explains, "If the statute does not characterize the crime as either a felony or a misdemeanor, but specifies a punishment, that becomes the test. If the statute calls for imprisonment in the state prison, the offense is a felony. [Citations.] If such imprisonment is not specified, the offense can only be a misdemeanor or infraction. [Citation.]" (1 Witkin & Epstein, Cal.Criminal Law (2d ed. 1988) Introduction to Crimes, § 75, pp. 91-92.)

Petty theft (§§ 484, 486, 488) is ordinarily a misdemeanor. Pursuant to section 490 it is "punishable by fine not exceeding one thousand dollars ..., or by imprisonment in the county jail not exceeding six months, or both." An offense punishable in this manner is, by definition, a misdemeanor. (See § 17, subd. (a) ["A felony is a crime which is punishable with death or by imprisonment in the state prison. Every other crime or public offense is a misdemeanor except those offenses that are classified as infractions."]; see also People v. Shoaff (1993) 16 Cal.App.4th 1112, 1114, 20 Cal.Rptr.2d 464.)

However, petty theft can be punished more harshly under certain circumstances. Section 666 states, "Every person who, having been convicted of petit theft, grand theft, auto theft ..., burglary, carjacking, robbery, or a felony violation of Section 496 and having served a term therefor in any penal institution ..., is subsequently convicted of petit theft, then the person convicted of that subsequent offense is punishable by imprisonment in the county jail not exceeding one year, or in the state prison." Offenses that are punishable by imprisonment either in the county jail or in the state prison are called "wobblers." (See, e.g., People v. Superior Court (Perez) (1995) 38 Cal.App.4th 347, 355, 45 Cal.Rptr.2d 107.) In the case of wobblers, the characterization of the crime is dependent upon the actual punishment imposed. (Ibid.) When a defendant is sentenced to state prison, the offense is a felony; when the defendant is sentenced to county jail, the offense is a misdemeanor. (Ibid.; see also People v. Trausch (1995) 36 Cal.App.4th 1239, 1246-1247, 42 Cal.Rptr.2d 836.)

Here, the court sentenced appellant to state prison. By doing so, the court characterized the offense as a felony. Accordingly we conclude petty theft with a prior can be deemed a felony under the three strikes sentencing law.

The arguments appellant advances in an effort to avoid this conclusion are unpersuasive. He first cites People v. Bouzas (1991) 53 Cal.3d 467, 279 Cal.Rptr. 847, 807 P.2d 1076 for the proposition that the crime of petty theft can only be deemed a misdemeanor even when the additional prior crime elements of section 666 are satisfied. We see nothing in Bouzas that would support that conclusion. Indeed, the Bouzas court specifically said that "the [trial] court is given discretion to treat the offense [of petty theft with a prior] as either a misdemeanor or a felony." (P. 471.) Appellant also relies on isolated language from In re Boatwright (1932) 216 Cal. 677, 683, 15 P.2d 755 (Boatwright ), where the court stated, "Petit larceny, or petit theft, is not of itself a felony, and becomes such only when it is...