People v. Bean
| Decision Date | 29 August 1989 |
| Docket Number | No. C003594,C003594 |
| Citation | 261 Cal.Rptr. 784,213 Cal.App.3d 639 |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Ronald BEAN, Defendant and Appellant. In re Ronald BEAN on Habeas Corpus. |
| Court | California Court of Appeals Court of Appeals |
John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Steve White, Chief Asst. Attys. Gen., Arnold O. Overoye, Sr. Asst. Atty. Gen., Gary A. Binkerd, Supervising Deputy Atty. Gen., Maureen A. Daly, Asst. Supervising Deputy Atty. Gen., and George M. Hendrickson, Deputy Atty. Gen., for plaintiff and respondent.
Defendant was charged with burglary and petty theft with a prior conviction. 1 It was alleged he had served a prior prison term for the prior conviction which underlay the section 666 charge. ( § 667.5, subd. (b).) The parties entered into a plea bargain: Defendant was to plead guilty to attempted petty theft with a prior and the court would try the validity of the prior conviction enhancement and entertain defendant's motion to strike the enhancement. This bargain was implemented. The court denied the motion to strike. The court imposed one-half the upper term of three years ( § 664) and stayed any punishment for the enhancement. The court later vacated the sentence, reimposed half the upper term and refused to stay the enhancement.
As required at the time in question, defendant obtained a certificate of probable cause and raised several issues on appeal. According to defendant he was paroled on February 23, 1988 and his parole was revoked on January 11, 1989. After exhausting his administrative remedies he petitioned for a writ of habeas corpus, contending he was entitled to certain time credits and that his conviction was invalid, the principal contention asserted in his appeal. We consolidated the petition with the appeal and issued an order to show cause. We agree that his conviction was invalid and the judgment must be reversed. We therefore do not reach the other contentions raised in the appeal.
The factual basis of the plea established defendant tried to steal a videocassette recorder from a Sears store on July 25, 1985. He had previously been convicted of petty theft and burglary in 1978. Pursuant to the plea bargain defendant pled guilty to attempted petty theft with a prior conviction as a lesser included offense of the petty theft charge and the burglary count was dismissed. In a court trial, the court found the prior conviction enhancement to be true and denied defendant's motion to strike the enhancement.
Defendant's claim is refreshingly simple: "[Defendant] was convicted of a non-crime." This claim has merit.
Defendant pleaded guilty to attempted petty theft with a prior conviction. There is a crime of attempted petty theft. 2 There is a crime of petty theft with a prior conviction. 3 But the Legislature thus far has not made attempted petty theft with a prior conviction a crime, as an examination of the controlling statute demonstrates.
At the time of defendant's crime Section 666 provided: "Every person who, having been convicted of petit theft, grand theft, burglary, or robbery and having served a term therefor in any penal institution or having been imprisoned therein as a condition of probation for such offense, is subsequently convicted of petit theft, then the person convicted of such subsequent offense is punishable by imprisonment in the county jail not exceeding one year, or in the state prison." (Emphasis added; Stats.1977, ch. 296, § 1, p. 1196.) To be in violation of the section 666 one must: 1) bear the status of having been convicted of one of the specified offenses; 2) have served a defined term therefor; and 3) be "subsequently convicted of petit theft...." 4
In determining the scope of section 666, it is settled that we first must look to the language of the statute. We are required to give effect to the usual, ordinary meaning of the language of the statute and when the statutory language is clear and unambiguous, we should not engage in construction and interpretation. Our function is to follow the plain language of the statutes. 5 (People v. Belleci (1979) 24 Cal.3d 879, 884, 157 Cal.Rptr. 503, 598 P.2d 473; Solberg v. Superior Court (1977) 19 Cal.3d 182, 198, 137 Cal.Rptr. 460, 561 P.2d 1148.)
The plain meaning of section 666 is that a person must be "convicted of petit theft" after suffering a prior conviction of petty theft, grand theft, burglary or robbery and be imprisoned for such prior conviction. Defendant did not plead to and was thereby not convicted of petty theft. He pled to and was convicted of attempted petty theft with a prior.
The Legislature could have listed attempted petty theft (or any other crime) which would bring persons of the specified onerous status within the statute's reach upon commission or conviction. The Legislature, however, specified only persons who are convicted of petty theft are subject to the increased punishment provided by section 666.
In opposition to defendant's claim, the People make two contentions. First the People construe defendant's assertion as a claim to have pleaded guilty only to a misdemeanor. "Properly understood" say the People, "his argument is that attempted petty theft with a prior conviction is not a felony because a violation of Penal Code section 666 can not be the subject of an attempt under Penal Code section 664." (Emphasis added.) We believe the People misunderstand defendant's argument. That argument is that he did not plead guilty to attempted petty theft (a misdemeanor) and then admit a prior conviction but pled guilty to attempted petty theft with a prior, a noncrime.
Second, it is the People's position that existence of a valid or invalid attempt to commit a violation of section 666 turns on The People have cited us to no cases, apposite or otherwise, that the proffered legal theory has any authoritative basis. The cases cited, People v. Delany (1874) 49 Cal. 394, 395 and People v. Bennett (1987) 188 Cal.App.3d 911, 913-915, 233 Cal.Rptr. 729, hold only that a prior conviction is an element of the crime under section 666 and must be factually charged and proven. People v. Bennett, supra, holds that since the passage of article I, section 28(f) of the California Constitution this must be done in open court. Such cases are simply irrelevant to the issue presented herein. Certainly a prior conviction for one of the enumerated offenses is an element of the crime under section 666. But the other essential element completely disregarded by the People is that there must also be a current conviction of petty theft.
whether the section is an "element" statute or an enhancement statute. If it is an "element" statute, it is a substantive offense and necessarily is capable of being attempted. The People assert that section 666 offenses are substantive offenses and ergo, an attempted violation of section 666 is a crime. 6
The untenable nature of the People's assertion that an "element" statute is a substantive offense and necessarily capable of being attempted is demonstrated by any number of substantive crimes which cannot be attempted. Assault and involuntary manslaughter are substantive offenses which are not capable of being attempted. As determined infra, even assuming section 666 is an "element" statute, one of the elements of the crime is a present conviction of petty theft. It is not the commission of the petty theft but the conviction which triggers the more onerous sentencing provisions of section 666.
In a supplemental reply brief defendant asserts he pleaded guilty only to attempted petty theft. The record does not support this contention. Before the plea was taken his attorney described it as a "plea of guilty to a lesser included reasonably related offense of violation of attempted petty theft with a prior conviction, with the further understanding that the Court will transfer [a pending] motion to strike the enhancing allegation of the one year enhancement for the prior conviction." (Emphasis added.) The People explained their reason for the plea thus: (Emphasis added.) Counsel stated he had explained the crime to defendant and defendant stated he understood.
Defendant was told he could be sentenced to 18 months for the crime and to an additional year for the prior enhancement. The court obtained the waivers required by Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, and In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449. The court asked "Have you been threatened to cause you to offer to plead guilty to the attempted petty theft ?" (Emphasis added.) When the plea was finally taken the court asked: (Emphasis added.)
Defendant points to these two last excerpts as showing he pleaded guilty only to attempted petty theft. We disagree. The proceedings read as a whole demonstrate the plea was to "attempted petty theft with a prior," believed by the parties to be a felony. Though the court employed a shorthand method of referring to the code section "664/666", we do not believe the...
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...but acted in excess of that jurisdiction by trying and convicting defendant for a non-existent crime. (See also People v. Bean (1989) 213 Cal.App.3d 639, 642, 261 Cal.Rptr. 784 [defendant convicted of "non-crime": attempted petty theft with a prior Another pertinent example of a trial court......
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