People v. Benson

• Decision Date: 16 April 1997
• Docket Number: No. B099330,B099330
• Citation: 54 Cal.App.4th 282,62 Cal.Rptr.2d 690
• Parties: Previously published at 54 Cal.App.4th 282 54 Cal.App.4th 282, 97 Cal. Daily Op. Serv. 2826, 97 Daily Journal D.A.R. 4941 The PEOPLE, Plaintiff and Respondent, v. Russell Donald BENSON, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 690

62 Cal.Rptr.2d 690

Previously published at 54 Cal.App.4th 282

54 Cal.App.4th 282, 97 Cal. Daily Op. Serv. 2826,

97 Daily Journal D.A.R. 4941

The PEOPLE, Plaintiff and Respondent, v. Russell Donald BENSON, Defendant and Appellant.

No. B099330.

Court of Appeal, Second District, Division 4, California.

April 16, 1997.

As Modified April 22, 1997.

Review Granted July 23, 1997.

Russell S. Babcock, under appointment by the Court of Appeal, San Diego, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, William T. Harter, Supervising Deputy Attorney General, and Pamela C. Hamanaka and Ellen Birnbaum Kehr, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

BARON, Associate Justice.

Appellant, Russell Donald Benson, was convicted by a jury of petty theft with a prior (PEN.CODE, § 666)¹, two "strike" priors were found true and he was sentenced to the state prison for 25 years to life. (§§ 667, subd. (e)(2)(A)(ii), 1170.12, subd. (c)(2)(A)(ii).) On appeal, appellant mounts multiple challenges to the manner in which his prior residential burglary conviction was used for sentencing purposes. He contends, (1) a non-theft-related burglary cannot be used to elevate petty theft to felony, (2) the same burglary conviction cannot be used both to convert petty theft to a felony and as a "strike," and (3) it was error to treat his prior convictions as two convictions within the meaning of the Three Strikes law because both convictions arose from a single incident. Alternatively, appellant urges us to find that his sentence violates the constitutional prohibition against cruel and/or unusual punishment and requests the case be remanded to the trial court for resentencing pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530, footnote 13.

For the reasons explained below, we remand the case for resentencing pursuant to Romero and in all other respects affirm the judgment.

PROCEDURAL AND FACTUAL SUMMARY

In 1979, shortly after his 18th birthday, appellant committed the crimes of residential burglary and assault with the intent to commit murder with use of a knife causing great bodily injury to the victim. (§§ 459, 12022, subd. (b), 12022.7, 217 (Repealed).) Appellant was convicted by a jury of both crimes and, on October 16, 1980, he was sentenced to state prison for 10 years with respect to the residential burglary charge. Sentence on appellant's conviction for assault with intent to commit murder was stayed. ² Appellant was released from state prison on parole on September 12, 1985.

Other than a misdemeanor section 647, subdivision (b) conviction on August 2, 1991, appellant had no further brushes with the law until November 30, 1994, when he was arrested for, and subsequently convicted of, shoplifting a carton of cigarettes worth $20 from a Target store ³ in Lancaster. ⁴ At sentencing, the trial court denied appellant's motion to strike his priors and refused to reduce the petty theft conviction to a misdemeanor.

DISCUSSION

I. The Waiver/Forfeiture Rules on Appeal

One of the primary issues presented in this case is whether the crime of "burglary" as used in section 666 is restricted to theft-related burglaries or applies also to burglaries with the intent to commit "any felony." Appellant did not raise this issue in the trial court. Thus, a preliminary consideration is whether appellant can raise the issue on appeal. Respondent argues "that any defect involving the type of prior used to elevate the theft to 'wobbler' status has been waived by appellant's failure to assert the matter before trial." ⁵ Respondent relies on a number of cases holding that a failure to demur to the information waives any defect in pleading. (People v. Jennings (1991) 53 Cal.3d 334, 356-357, 279 Cal.Rptr. 780, 807 P.2d 1009; People v. Equarte (1986) 42 Cal.3d 456, 466-467, 229 Cal.Rptr. 116, 722 P.2d 890; People v. Thomas (1986) 41 Cal.3d 837, 843, 226 Cal.Rptr. 107, 718 P.2d 94; People v. Booker (1994) 21 Cal.App.4th 1517, 1521, 26 Cal.Rptr.2d 715.) Appellant counters with the argument that "[w]here there is an absolute omission of a fact which the statute makes an essential ingredient of the offense, the defect is one of substance and not merely one of form. In such case the defect is not merely the failure to allege a necessary fact with sufficient certainty; it is a failure to charge any public offense whatever. So radical a defect is not waived by neglecting to file a demurrer, but may be raised at any time. [Citation.]" (People v. McKean (1925) 76 Cal.App. 114, 116, 243 P. 898.)

"Before directly confronting the question, we must carefully consider what we mean by the word 'waiver.' Over the years, cases have used the word loosely to describe two related, but distinct, concepts: (1) losing a right by failing to assert it, more precisely called forfeiture; and (2) intentionally relinquishing a known right. '[T]he terms "waiver" and "forfeiture" have long been used interchangeably. The United States Supreme Court recently observed, however: "Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the 'intentional relinquishment or abandonment of a known right.' [Citations.]" (United States v. Olano (1993) 507 U.S. 725, 733 123 L.Ed.2d 508, 519.)' (People v. Saunders (1993) 5 Cal.4th 580, 590, fn. 6 [20 Cal.Rptr.2d 638, 853 P.2d 1093].)" (Cowan v. Superior Court (1996) 14 Cal.4th 367, 371, 58 Cal.Rptr.2d 458, 926 P.2d 438.)

Given that the question of the proper interpretation of section 666 raised by appellant appears to be one of first impression, we have difficulty assuming he intentionally relinquished or abandoned a known right. Respondent's argument fits more squarely within the definition of "forfeiture" in that appellant failed to preserve his right to appeal by failure to raise the issue below and, ordinarily, we would agree with respondent's position. In the majority of cases we do not review points not raised below. (People v. Brawley (1969) 1 Cal.3d 277, 294, 82 Cal.Rptr. 161, 461 P.2d 361.) But, in certain limited circumstances, we do not strictly adhere to the forfeiture rule. We exercise our discretion to determine an issue "where the error is too fundamental to be ignored" (9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 322, p. 332) "or where the new theory 'presents a question of law to be applied to undisputed facts in the record' [citation]." (In re Marriage of Moschetta (1994) 25 Cal.App.4th 1218, 1227, 30 Cal.Rptr.2d 893.) We find this to be just such a case. While neither appellant nor anyone else has previously raised this precise question, it is likely to be raised in the future if we leave it unresolved. Furthermore, we believe that "the public has a clear interest in seeing its legislative purposes properly implemented," and because appellant "presents a question of substantial right" it warrants appellate review. (See, e.g., People v. Superior Court (John D.) (1979) 95 Cal.App.3d 380, 387, 157 Cal.Rptr. 157.) ⁶

II. The Scope of Burglary in Section 666

Petty theft may be punished as either a misdemeanor or an infraction "where the value of the ... property taken ... does not exceed fifty dollars ($50) ... provided that the person charged with the offense has no other theft or theft-related conviction." (§ 490.1, subd. (a).) ⁷ Petty theft may be punished as a felony and consequently trigger a Three Strikes penalty if the defendant is convicted of petty theft and "[has previously] been convicted of petit theft, grand theft, auto theft ..., burglary,[ ⁸] carjacking, robbery or a felony violation of Section 496 [receiving stolen property] and ... served a term therefor in any penal institution...." (§ 666; People v. Terry (1996) 47 Cal.App.4th 329, 332, 54 Cal.Rptr.2d 769; People v. Stevens, supra, 48 Cal.App.4th at p. 987, 56 Cal.Rptr.2d 13.)

Appellant contends "[t]he purpose of Penal Code section 666 is to provide more severe punishment for repeat offenders whose prior convictions are theft-related" and since his 1980 residential burglary conviction was not a theft-related burglary it should not have been used to elevate his petty theft crime to a felony. Although we have been cited to no case which has discussed this precise issue, we observe that a number of courts in the process of analyzing other issues have taken it for granted that the prior convictions referred to in the crime of "petty theft with a prior" are all theft-related priors. For example, in the case of People v. Ancira (1985) 164 Cal.App.3d 378, 381, 210 Cal.Rptr. 527, the court stated: "The focus of section 666 is on theft-related priors; it is irrelevant whether the priors are felonies or misdemeanors. The apparent intent of the statute is to provide extra punishment for recidivist thieves, rather than ex-felons who commit petty theft. Thus, only a prior theft-related conviction, and not necessarily a prior felony conviction, is a component of a section 666 violation." (Emphasis added.)

Another example is People v. Bouzas (1991) 53 Cal.3d 467, 279 Cal.Rptr. 847, 807 P.2d 1076, in which the court reviewed the history of section 666 beginning with its enactment in 1872 to determine whether it is a sentence-enhancing statute or a substantive offense statute. The court found that "[u]ntil 1976, section 666 addressed only misdemeanor theft-related prior convictions resulting in incarceration. It made a current conviction for 'any crime' punishable as either a misdemeanor or a felony, if the defendant had been earlier convicted of and served time for petty larceny or petty theft. In that year, however, the Legislature rewrote section 666 and merged it with former section 667. Former section 667 was also originally enacted in 1872, and before its merger with section 666 made a current conviction for 'petty...