People v. Zangari
| Decision Date | 21 June 2001 |
| Docket Number | No. A091689.,A091689. |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Nicholas Robert ZANGARI, Defendant and Appellant. |
Appellant pled no contest to felony theft with a prior (count 2) (Pen.Code,1 § 666). In light of this plea, a commercial burglary (count 1) (§ 460, subd. (b)) was dismissed. Faced with an Oregon "[b]urglary in the [f]irst [d]egree" prior, committed in August of 1994, alleged as a "strike" pursuant to section 1170.12, subdivision (c)(1), appellant waived a jury trial on the Oregon prior.
Appellant's motion to strike the Oregon prior was denied; and at the conclusion of a court trial, the court found the Oregon prior was true and that it constituted a strike under the provisions of section 1170.12. Appellant was sentenced to the mitigated term of 16 months, which was doubled to 32 months based upon the prior strike. Timely notice of appeal was filed on June 27,2000.
On appeal, appellant contends that the evidence of his Oregon prior conviction does not establish all the elements of a California offense and therefore does not constitute a strike for sentencing purposes. We affirm.
Although the facts of the underlying offenses are not at issue, the following is taken from the probation report.
"On September 8, 1999, officers were dispatched to Home Depot on the report of a theft. Upon their arrival, they met with the loss prevention officer. He related that he observed the defendant selecting merchandise from inside the store and proceeding] to the returns counter. The defendant returned the merchandise to Home Depot for a cash refund of $41.10. As soon as the defendant obtained the money, he was approached by the loss prevention officer and placed under citizen's arrest. He readily admitted his culpability and stated that he needed the cash for medicine. Further investigation found he was a frequent refunder with no receipt at Home Depot. The defendant was subsequently arrested and transported to the main jail in Redwood City."
To qualify as a strike, a conviction in another jurisdiction must include all of the elements of the specified California felony. (See § 1170.12, subd. (b)(2).) The initiative version of the three strikes law uses the same criteria and language as the legislative version. (See ibid.; § 667.5, subd.
In determining whether an out-of-state prior is a serious felony, "the trier of fact may consider the entire record of the proceedings leading to imposition of judgment on the prior conviction to determine whether the offense of which the defendant was previously convicted involved conduct which satisfies all the elements of the comparable California serious felony offense." (People v. Myers (1993) 5 Cal.4th 1193, 1195, 22 Cal.Rptr.2d 911, 858 P.2d 301.)
(People v. Johnson (1991) 233 Cal.App.3d 1541, 1548, 285 Cal.Rptr. 394.) This rule has been applied in a case in which the prior conviction resulted from a defendant's guilty plea. (See People v. Rodriguez (1998) 17 Cal.4th 253, 261-262, 70 Cal.Rptr.2d 334, 949 P.2d 31.)
The same approach applies in determining whether an out-of-state prior is a strike for purposes of the three strikes law. (People v. Purata (1996) 42 Cal. App.4th 489, 493, 49 Cal.Rptr.2d 664; People v. Mobley (1999) 72 Cal.App.4th 761 794-796, 85 Cal.Rptr.2d 474; §§ 667, subd. (d)(2) & 668.)
Here, the record of conviction consists only of the Oregon indictment, a petition to enter a plea of guilty, judgment, and an amended judgment and order.
As a factual basis for the plea, appellant accepted the language of the indictment's second count, burglary in the first degree, and stipulated that:
"On or about August 26, 1994 in Crook County, Oregon I did unlawfully and knowingly enter and remain in a dwelling located at 281205 Mill Creek Rd., Prineville, Oregon, with the intent to commit the crime of theft therein."
On September 20, 1994, appellant was sentenced to 18 months in the Oregon Department of Corrections with credit for time served and "post prison supervision" for 36 months. Restitution in the amount of $2,205 was ordered to be paid to the victims of the burglary, which amount would be reduced if additional property was recovered. Subsequently, the court ordered by way of amended judgment that the restitution amount be split and paid to two parties.
Although the record does not disclose the facts of the offense or the behavior of appellant in committing the burglary, we may presume that the prior conviction was for the least offense punishable under Oregon law. (People v. Guerrero, supra, 44 Cal.3d at p. 355, 243 Cal.Rptr. 688, 748 P.2d 1150; People v. Rodriguez, supra, 17 Cal.4th at pp. 261-262, 70 Cal.Rptr.2d 334, 949 P.2d 31.)
In Oregon, a person commits second degree burglary if "the person enters or remains unlawfully in a building with intent to commit a crime therein." (Or.Rev. Stat. § 164.215, subd. (1).) When the building invaded is a dwelling or when other circumstances not relevant to this appeal are proven, the burglary is a first degree burglary, a class A felony. (Id., § 164.225.)
Under California law, "burglary of an inhabited dwelling house" was classified as a serious felony at the time appellant was convicted of his Oregon prior. (§ 1192.7, former subd. (c)(18) [].)
The burglary of an inhabited dwelling house, as a serious felony, qualifies as a strike pursuant to section 1170.12, subdivision (b)(1).
Appellant's Oregon burglary conviction was based on his intent to commit "theft" within a dwelling.
In People v. Marquez (1993) 16 Cal. App.4th 115, 123, 20 Cal.Rptr.2d 365, disapproved on other grounds in People v. Cuevas (1995) 12 Cal.4th 252, 275, footnote 5, 48 Cal.Rptr.2d 135, 906 P.2d 1290, the court found that the Oregon theft statute defines the intent element of theft as (some italics omitted.)
In Oregon, a person commits theft by taking another's property with the intent to deprive that person of the property or with the intent to appropriate the property. (Or.Rev.Stat. § 164.015.)
To "`appropriate'" means to: "(a) Exercise control over property of another ... permanently or for so extended a period or under such circumstances as to acquire the major portion of the economic value or benefit of such property; or [11] (b) Dispose of the property of another for the benefit of oneself...." (Or.Rev.Stat. § 164.005, subd. (1).)
To "`deprive'" means to: "(a) Withhold property of another or cause property of another to be withheld from that person permanently or for so extended a period or under such circumstances that the major portion of its economic value or benefit is lost to the person; or [f] (b) Dispose of the property in such manner or under such circumstances as to render it unlikely that an owner will recover such property." (Or.Rev.Stat. § 164.005, subd. (2).)
"Theft" in California, for purposes of a burglary offense, requires the intent to permanently deprive a person of property. (See People v. Ortega (1998) 19 Cal.4th 686, 693, 80 Cal.Rptr.2d 489, 968 P.2d 48["[t]heft requires an element—the specific intent to permanently deprive a person of property" (italics omitted) ].)
The Marquez court concluded that (People v. Marquez, supra, 16 Cal.App.4th at p. 123, 20 Cal.Rptr.2d 365, italics omitted.)
Dicta in the Supreme Court case People v. Davis (1998) 19 Cal.4th 301, 79 Cal.Rptr.2d 295, 965 P.2d 1165,2 decided after Marquez, appears to support respondent's contention that the intent to deprive an owner of the main value of his property is equivalent to the intent...
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