Opinion
E051502
10-05-2011
THE PEOPLE, Plaintiff and Respondent, v. MARK ANTHONY DUCHANE, Defendant and Appellant.
Correen Ferrentino, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. FWV1000317)
OPINION
APPEAL from the Superior Court of San Bernardino County. Mary E. Fuller, Judge. Affirmed.
Correen Ferrentino, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Mark Anthony Duchane was found guilty of one count of petty theft with a prior theft conviction, to wit, a residential burglary in 2007 (Pen. Code, §§ 484, subd. (a)/666). In a bifurcated proceeding, the trial court found true that defendant had suffered the prior theft conviction for residential burglary, one prior serious or violent felony conviction (§§ 667, subd. (b)-(i), 1170.12, subd. (a)-(d)), and one prior prison term (§ 667.5, subd. (b)). Defendant was sentenced to a total term of five years in state prison with credit for time served. Defendant's sole contention on appeal is that his conviction must be reduced to a misdemeanor because for a trial court to sentence a defendant pursuant to section 666 on the basis of a prior burglary conviction, the People must present sufficient evidence that the prior burglary conviction was theft-related. We affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
I
FACTUAL AND PROCEDURAL BACKGROUND
Defendant stole a pair of shoes from a K-Mart store.
The specific details of defendant's criminal conduct are not relevant to the limited legal question he raises in this appeal. Those details are set out in defendant's opening brief, and we will not recount them here.
On May 4, 2010, following a preliminary hearing, the People filed a one-count information charging defendant with petty theft with a prior (§§ 484, subd. (a)/666). The People also alleged, pursuant to section 666, that defendant had previously suffered a prior burglary conviction (§ 459) and that he had been incarcerated for that conviction. Under section 666, a conviction for petty theft is punishable as a felony where the defendant has previously been convicted of certain enumerated offenses and has either served a term in a penal institution or been imprisoned as a condition of probation for the prior conviction. The People further alleged that defendant's prior burglary conviction constituted a prior prison term (§ 667.5, subd. (b)) and a strike prior (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) within the meaning of the three strikes law.
During the first phase of a bifurcated trial, the jury found defendant guilty of petty theft. After the jury returned its verdict, the trial court found that defendant had previously suffered a conviction for burglary within the meaning of section 666 and the three strikes law.
During the court trial, the People entered into evidence a certified section 969b packet pertaining to defendant's prior burglary conviction. The only factual specific relating to the prior burglary conviction came from the charging document, which stated: "On or about October 18, 2006, . . . the crime of FIRST DEGREE RESIDENTIAL BURGLARY, in violation of PENAL CODE SECTION 459, a felony, was committed by Mark Anthony Duchane, who did enter an inhabited dwelling house and trailer coach and inhabited portion of a building occupied by Charlene Cochoran[], with the intent to commit larceny and any felony."
II
DISCUSSION
Defendant essentially claims that in order for a trial court to sentence a defendant pursuant to section 666 on the basis of a prior burglary conviction, the People must present evidence that the prior burglary conviction was theft related. We apply the de novo standard of review to defendant's claim, since it raises an issue of statutory interpretation. (People v. Superior Court (Ferguson) (2005) 132 Cal.App.4th 1525, 1529.)
"'When construing a statute, we must "ascertain the intent of the Legislature so as to effectuate the purpose of the law."' [Citation.] '[W]e begin with the words of a statute and give these words their ordinary meaning.' [Citation.] 'If the statutory language is clear and unambiguous, then we need go no further.' [Citation.]" (People v. Sinohui (2002) 28 Cal.4th 205, 211.) "If the statutory language is unambiguous, 'we presume the Legislature meant what it said, and the plain meaning of the statute governs.' [Citation.]" (Whaley v. Sony Computer Entertainment America, Inc. (2004) 121 Cal.App.4th 479, 485.)
"[I]t is the role of the judiciary to simply ascertain and declare what is in terms or in substance contained in the statute, not to insert what has been omitted or omit what has been included. In other words, the courts 'may not, under the guise of construction, rewrite the law or give the words an effect different from the plain and direct import of the terms used.' [Citation.]" (People v. Massicot (2002) 97 Cal.App.4th 920, 925.)
At the time defendant committed the present offense, section 666 provided: "Every person who, having been convicted of petty theft, grand theft, auto theft under Section 10851 of the Vehicle Code, burglary, carjacking, robbery, or a felony violation of Section 496 and having served a term therefor in any penal institution or having been imprisoned therein as a condition of probation for that offense, is subsequently convicted of petty 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." (Former § 666, italics added.)
"Effective September 9, 2010, Assembly Bill No. 1844 (2009-2010 Reg. Sess.), the Chelsea King Child Predator Prevention Act of 2010 (hereafter AB 1844 or the act), amended section 666 to provide, in pertinent part: '(a) Notwithstanding Section 490 [(specifying the punishment for petty theft)], every person who, having been convicted three or more times of petty theft, grand theft, auto theft under Section 10851 of the Vehicle Code, burglary, carjacking, robbery, or a felony violation of Section 496 and having served a term therefor in any penal institution or having been imprisoned therein as a condition of probation for that offense, is subsequently convicted of petty 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.'" (People v. Vinson (2011) 193 Cal.App.4th 1190, 1194.)
"Clearly, new subdivision (a) of section 666 requires proof of at least three prior convictions, not just one, for individuals who . . . have not suffered prior serious or violent felony convictions and who are not required to register as sex offenders."(People v. Vinson, supra, 193 Cal.App.4th at p. 1194, fn. omitted.) Here, however, defendant's prior conviction for first degree residential burglary qualifies as a strike, and therefore only one prior qualifying offense under section 666 is required. (§§ 666, subd. (b)(1), 667.5, subd. (c)(21).)
Recently, the Fifth Appellate District concluded in People v. Vinson, supra, 193 Cal.App.4th 1190 that the amendment to section 666, subdivision (a) "applies retroactively" (Vinson, at p. 1193) to convictions that were not final as of that date (id. at p.1194).
Additionally, the probation report indicates that defendant was required to register as a sex offender following his conviction for misdemeanor sexual battery.
Section 459 defines the crime of burglary in relevant part as follows: "Every person who enters any house [or various other structures] . . . with intent to commit grand or petit larceny or any felony is guilty of burglary."
The text of section 666 refers simply to a prior conviction for "burglary." There is nothing in section 666 that restricts its application to prior burglary convictions to theft-related burglaries. If the Legislature had intended to restrict section 666 in this fashion, it could have inserted the phrase "with intent to commit grand or petit larceny" after the term "burglary," in the text of the statute. It has not done so. We decline to insert this phrase into section 666, "'under the guise of construction . . . .'" (People v. Massicot, supra, 97 Cal.App.4th at p. 925.)
Burglary has been an offense listed in section 666 since 1977. (See Historical and Statutory Notes, 49 West's Ann. Pen. Code (2010 ed.) foll. § 666, pp. 179-180.)
The statutory language of section 666 unambiguously applies to any prior burglary conviction for which a defendant has served a term in a penal institution or been imprisoned as a condition of probation. The plain meaning of the statute governs. (Whaley v. Sony Computer Entertainment America, Inc., supra, 121 Cal.App.4th at p. 485.)
We reject defendant's contention that because some courts have indicated that the purpose of section 666 is to allow for increased punishment of persons convicted of petty theft who have "theft-related priors," section 666 must be interpreted to apply only to theft-related burglaries. (E.g., People v. Ancira (1985) 164 Cal.App.3d 378, 381, abrogated on other ground by People v. Darwin (1993) 12 Cal.App.4th 1101, 1103.) The language of section 666 is plain and unambiguous, and we may not interpret the statute in a manner contrary to that language. (See People v. Statum (2002) 28 Cal.4th 682, 692 ["[a] court may not rewrite a statute to conform to a presumed intent that is not expressed"].)
Further, since many burglaries are theft related, the Legislature could have reasonably decided to provide for the possibility of enhanced punishment for a person who is convicted of petty theft after having been convicted of any prior burglary, irrespective of whether the People are able to prove that the prior conviction was for a prior theft-related burglary.
We conclude that the People were not required to prove that defendant's prior burglary conviction was a theft-related burglary in order for the trial court to impose a sentence pursuant to section 666.
In light of our conclusion, we need not address defendant's contention that the People failed to present sufficient evidence that his prior burglary conviction was theft related.
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III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
HOLLENHORST
Acting P.J.
CODRINGTON
J.