People v. Shoaff

• Decision Date: 24 June 1993
• Docket Number: No. B068139,B068139
• Citation: 16 Cal.App.4th 1112,20 Cal.Rptr.2d 464
• Parties: The PEOPLE, Plaintiff and Respondent, v. Shannon Wayne SHOAFF, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 464

20 Cal.Rptr.2d 464

16 Cal.App.4th 1112

The PEOPLE, Plaintiff and Respondent, v. Shannon Wayne SHOAFF, Defendant and Appellant.

No. B068139.

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

June 24, 1993.

Certified for Partial Publication ^*

Review Denied Sept. 22, 1993.

Christopher Duran, South Pasadena, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Sr. Asst. Atty. Gen., J. Robert

Jibson, Supervising Deputy Atty. Gen., Janine R. Busch, Deputy Atty. Gen., for plaintiff and respondent.

TURNER, Presiding Justice.

I. INTRODUCTION

Defendant was charged with grand theft (Pen.Code, § 487, subd. 1) ¹ but convicted of petty theft (§ 488)--ordinarily a misdemeanor offense. ² However, defendant received a felony sentence pursuant to section 666 because he had prior convictions for theft-related offenses for which he had served prison terms. ³ On appeal, defendant contends he was improperly convicted of a non-lesser-included offense and the evidence was insufficient. In the published portion of this opinion, we conclude defendant was properly convicted and sentenced to prison for petty theft with a prior theft-related conviction and incarceration as enumerated in section 666 and we affirm the judgment.

II. PROCEDURAL BACKGROUND

Defendant was charged with grand theft in violation of section 487, subdivision 1. The information also alleged defendant had served four prior prison terms for convictions of two of the theft-related offenses listed in section 666: two robbery convictions (§ 211) and two petty theft with a prior convictions. (§ 666). ⁴ Each allegation of a prior conviction referred specifically to section 667.5, subdivision (b) which mandates enhanced sentencing based on prior prison terms served for felonies. ⁵ There was also a special allegation of six prior convictions within the meaning of section 1203, subdivision (e)(4) which, if admitted or found true, would preclude a grant of probation. ⁶

Defendant waived his right to a jury trial on the issue of his guilt or innocence and as to the alleged priors. Defendant made no request for a separate trial on the issue of the prior convictions and prior term enhancements. During trial, defendant admitted the two robbery and two petty theft with a prior convictions as alleged in the information. In addition, there was documentary evidence before the court, certified copies of records of the Department of Corrections, which showed defendant had been sentenced to prison as a result of three prior robbery convictions (case Nos. C40676, A457454, and A452115) and two prior petty theft with a prior convictions (case Nos. CR12702 and 44660). At the conclusion of the evidence, Superior Court Judge Victor T. Barrera found defendant guilty of petty theft. He further found true the allegations of prior theft-related convictions and incarcerations. Defense counsel timely objected on the grounds petty theft with a prior was not a lesser and necessarily included offense of grand theft. Defense counsel did not claim he was surprised by the finding of guilt of petty theft with a prior. Defendant was sentenced to prison pursuant to section 666.

III. DISCUSSION

Defendant argues he could not be convicted of petty theft with a prior because it was not a lesser and necessarily included offense of grand theft. This argument assumes, incorrectly, that the prior theft-related conviction and incarceration requirement of section 666 is an element of an offense. Our Supreme Court has recently held the prior conviction and incarceration requirement of section 666 is a sentencing factor and not an element of an offense. In People v. Bouzas, supra, 53 Cal.3d at pages 478-479, 279 Cal.Rptr. 847, 807 P.2d 1076, the court held: "Section 666 is--and has been since 1872--part of title 16 of the Penal Code, which is directed primarily to sentencing and punishment matters, to the exclusion of statutes defining substantive crimes [citation]. This supports our conclusion that the Legislature has long intended that section 666 establishes a penalty, not a substantive 'offense.' [p] The language of section 666 affirms this view. It is structured to enhance the punishment for violation of other defined crimes and not to define an offense in the first instance. It simply refers to other substantive offenses defined elsewhere in the Penal and Vehicle Codes and provides that if a defendant has previously been convicted of and imprisoned for any of these theft-related offenses, and thereafter commits petty theft (defined in section 484), the defendant is subject to punishment enhanced over that which would apply following a 'first time' petty theft conviction. [p] In other words, a charge under section 666 merely puts a defendant on notice (see § 969 [prior convictions must be alleged in the information] ) that if he is convicted of the substantive offense and if the prior conviction and incarceration allegation of section 666 is admitted or found true, he faces enhanced punishment at the time of sentencing. We conclude that, on its face, section 666 is a sentence-enhancing statute, not a substantive 'offense' statute."

Because the prior conviction and incarceration requirement of section 666 is not an element of an offense, the relevant question is not whether petty theft with a prior is a lesser and necessarily included offense of grand theft--the crime with which defendant was charged. Rather, the question is whether petty theft is a lesser and necessarily included offense of grand theft. The answer to that question is, indisputably, yes. (Gomez v. Superior Court (1958) 50 Cal.2d 640, 643-647, 328 P.2d 976; People v. McElroy (1897) 116 Cal. 583, 584, 587, 48 P. 718.) Therefore, when the court found defendant had committed a petty theft, as distinguished from a grand theft, it convicted him of a lesser included offense of that charged in the information.

This brings us to the question whether defendant was placed on notice he was subject to the provisions of section 666. Our Supreme Court has defined a defendant's due process right to notice as follows: " 'No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal.' [Citations.] 'A criminal defendant must be given fair notice of the charges against him in order that he may have a reasonable opportunity properly to prepare a defense and avoid unfair surprise at trial.' [Citation.]" (People v. Toro (1989) 47 Cal.3d 966, 973, 254 Cal.Rptr. 811, 766 P.2d 577.) There is no question defendant was on notice he could be convicted of petty theft as a lesser included offense. The Supreme Court has repeatedly stated that an accusatory pleading provides notice of the specific offense charged and also of necessarily included offenses. (People v. Toro, supra, 47 Cal.3d at p. 973, 254 Cal.Rptr. 811, 766 P.2d 577; People v. Lohbauer (1981) 29 Cal.3d 364, 368-369, 173 Cal.Rptr. 453, 627 P.2d 183; In re Arthur N. (1976) 16 Cal.3d 226, 233, 127 Cal.Rptr. 641, 545 P.2d 1345.) Therefore, the charge of grand theft against defendant necessarily provided notice he could be convicted of petty theft. ⁷

Further, "a valid accusatory pleading need not specify by number the statute under which the accused is being charged. [Citations.]" (People v. Thomas (1987) 43 Cal.3d 818, 826, 239 Cal.Rptr. 307, 740 P.2d 419; §§ 952, 960.) It is the specific factual allegations of a pleading which determine what offenses are charged. (People v. Thomas, supra, 43 Cal.3d at p. 826, 239 Cal.Rptr. 307, 740 P.2d 419.) An accusatory pleading must likewise allege each fact required for imposition of an enhanced term. (People v. Hernandez (1988) 46 Cal.3d 194, 208, 249 Cal.Rptr. 850, 757 P.2d 1013; People v. Jackson (1985) 37 Cal.3d 826, 835, fn. 12, 210 Cal.Rptr. 623, 694 P.2d 736; People v. Haskin (1992) 4 Cal.App.4th 1434, 1439-1440, 7 Cal.Rptr.2d 1.) In the case of In re Mitchell (1961) 56 Cal.2d 667, 669-670, 671, 16 Cal.Rptr. 281, 365 P.2d 177, a defendant charged with petty theft, a misdemeanor, and with having previously been convicted of a felony, was found guilty of petty theft with a prior. He was then sentenced to state prison pursuant to section 667. ⁸ The information had not specifically alleged the defendant was subject to the provisions of section 667. The defendant argued he had not been on notice he could be convicted of a felony. The Supreme Court disagreed: "With clarity, [the information] charges petty theft with a prior felony conviction, the very elements necessary to constitute a violation of section 667, a felony. [Defendant] could not possibly have been misled." (Id. at p. 670, 16 Cal.Rptr. 281, 365 P.2d 177.) In People v. Franco (1970) 4 Cal.App.3d 535, 538-539, 84 Cal.Rptr. 513, the defendant was charged with petty theft as well as with a prior conviction of and incarceration for petty theft. The information had not specifically alleged the defendant was subject to the provisions of section 666. The defendant admitted the prior, was found guilty of petty theft, and was sentenced to state prison pursuant to section 666. The defendant argued he was not on notice the charged offense could be elevated to a felony because of his admission of the prior conviction. The Court of Appeal disagreed, citing In re Mitchell, supra, 56 Cal.2d at pp. 669-670, 16 Cal.Rptr. 281, 365 P.2d 177. (People v. Franco, supra, 4 Cal.App.3d at pp. 538-539, 84 Cal.Rptr. 513.)

We hold defendant was on notice he was subject to the provisions of section 666. Defendant was charged with grand theft, a lesser included offense of which is petty theft. Defendant was on notice he could be found guilty of petty theft. (...