Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC643471
Premo, J.
Defendant Barton Rhett Williams was sentenced to 32 months in prison under California’s three strikes law. (Pen. Code, § 1170.12.) The strike upon which the trial court relied in imposing the sentence was a 1989 conviction for robbery in Oregon. Defendant argues that the Oregon conviction would not be considered robbery under California law and, therefore, that it could not have been used as a strike. In particular, defendant maintains that the mental state required for robbery in Oregon is something less than that required in California. We conclude, as did the appellate court in People v. Zangari (2001) 89 Cal.App.4th 1436 (Zangari), that there is no difference between Oregon and California law with respect to the mental state required for robbery. Accordingly, we affirm the judgment.
Further unspecified section references are to the Penal Code.
I. PROCEDURAL BACKGROUND
A complaint charged defendant with one count of second degree burglary (§§ 459, 460) and one count of attempted robbery (§ 211). The complaint also alleged that defendant had suffered two prior strike convictions (§ 1170.12), two prior serious felonies (§ 667, subd. (a)), and one prison prior (§ 667.5, subd. (b)). Defendant pleaded no contest to the burglary count in exchange for dismissal of all remaining charges and allegations other than one strike prior. The agreement was that he would be sentenced to 32 months in prison if the trial court found the strike allegation to be true. Sentencing would be up to the court if it found the allegation to be untrue.
At trial of the strike allegation the prosecutor introduced a set of documents from the Multnomah County, Oregon court file and audio tapes of the court trial, closing arguments, and the trial court’s decision in the Oregon case. As shown by that evidence, on the evening of July 17, 1989, defendant entered a convenience store in Gresham, Oregon and attempted to purchase a pack of cigarettes and two bottles of beer but did not have enough money to pay for them. When the clerk refused the sale, defendant left the store with the beer and his money. Another clerk followed him outside and defendant shoved him and told him he had a gun and that he was going to blow the victim’s brains out. Defendant then placed the beer in a dumpster and walked away. The police arrived soon thereafter and defendant was arrested. One officer recovered the beer from the dumpster. The Oregon trial court found defendant guilty of third degree robbery based upon the finding that defendant had shoved the second clerk intending to prevent him from retrieving the beer. The court did not make any express finding of defendant’s intent in taking the beer.
Defendant argued at trial in this case that the Oregon conviction could not be considered a strike because the intent required for theft in Oregon was not the same as that required by California law. The trial court disagreed, concluding that, in finding defendant guilty of third degree robbery, the Oregon court necessarily found that he had committed theft and that the intent required for theft in Oregon meets the requirements of California law. Accordingly, the trial court held that defendant’s Oregon conviction would be considered a conviction of robbery in this state as well. Defendant maintains that the trial court erred in this determination.
II. DISCUSSION
To qualify as a strike, a conviction from another jurisdiction must have been for an offense that includes all of the elements of the specified California felony. (§ 1170.12, subd. (b)(2).) “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.’ [Citation.] [¶] ‘ “[W]hen the record does not disclose any of the facts of the offense actually committed” [citation], a presumption arises that the prior conviction was for the least offense punishable.’ ” (Zangari, supra, 89 Cal.App.4th at p. 1440.) The offense with which we are concerned is robbery.
Section 1170.12, subdivision (b)(2) provides: “Notwithstanding any other provision of law and for the purposes of this section, a prior conviction of a felony shall be defined as: [¶] . . . [¶] (2) A conviction in another jurisdiction for an offense that, if committed in California, is punishable by imprisonment in the state prison. A prior conviction of a particular felony shall include a conviction in another jurisdiction for an offense that includes all of the elements of the particular felony as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7.”
Robbery in California is defined as “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear” (§ 211). The taking must be “with the specific intent permanently to deprive that person of the property.” (CALJIC No. 9.40; see e.g., People v. Tapia (1994) 25 Cal.App.4th 984, 1027-1028.)
Here, the record discloses that defendant took property in possession of the victim by means of force. It does not unambiguously disclose defendant’s intent in taking the property and the Oregon court did not make any finding on the point. The court’s guilty finding necessarily implies, however, that the court found all the facts required to support the conviction. Therefore, the Oregon conviction may be deemed a serious felony for three strikes purposes if third degree robbery in Oregon requires the same intent necessary for robbery in California.
As pertinent here, third degree robbery in Oregon occurs where a person “in the course of committing or attempting to commit theft . . . uses or threatens the immediate use of physical force upon another person . . . .” (Or. Rev. Stat. § 164.395, italics added.) 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 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
“(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).)
Defendant maintains that the second of these two definitions is inconsistent with California law and that under the facts of the Oregon case, the Oregon court might have found that he had merely intended to dispose of the beer in a way that made it unlikely the victim would recover it. The latter finding is not enough, he says, to support a robbery conviction in California. We disagree.
The California requirement of an intent “permanently to deprive” is not specified by the statute but is derived from the common law. As our Supreme Court has explained, in adopting the phrase “felonious taking” in section 211, the Legislature intended to incorporate the common law meaning of the phrase. (People v. Tufunga (1999) 21 Cal.4th 935, 946.)
Although common law specifies that theft requires the intent to permanently deprive the victim of the property, a person’s intent to take property only temporarily does not rule out a finding of theft. “Common law and California cases thus establish that an intent to steal will be recognized when personal property is dealt with in such a way as to create an unreasonable risk of permanent loss. ‘It is, of course, not very helpful to say that to be guilty of stealing property one must have an intent to steal the property. It is more helpful to state (as it is sometimes put) that, for larceny, one must intend to deprive the owner of the possession of his property either permanently or for an unreasonable length of time, or intend to use it in such a way that the owner will probably be thus deprived of his property.’ (2 LaFave & Scott, Substantive Criminal Law (1986) Crimes Relating to Property, § 8.5, p. 357.)” (Zangari, supra,89 Cal.App.4th at p. 1446.)
The offenses of larceny, embezzlement, and obtaining property by false pretenses were consolidated in 1927 into the single crime of theft under section 484. (Stats. 1927, ch. 619, p. 1046, § 1.) Notwithstanding that consolidation, the substantive distinctions among the offenses remain. “[A] judgment of conviction of theft, based on a general verdict of guilty, can be sustained only if the evidence discloses the elements of one of the consolidated offenses.” (People v. Ashley (1954) 42 Cal.2d 246, 258; see also, People v. Davis (1998) 19 Cal.4th 301, 303-304.)
Even though the Oregon statutes give a definition of the intent necessary for robbery, Zangari, supra,89 Cal.App.4th 1436, concluded that Oregon, like California, relies upon the common law concept of the mental state and that the statutory language requires nothing less. Zangari held: “[N]o new ground was broken in Oregon’s statutory definition of theft. The Oregon statutory scheme makes clear that theft has a subjective mental state (a purpose to deprive) and that an intent by one to do less than retain property permanently will constitute theft when the owner’s property was dealt with in such a way that there was a substantial risk of permanent loss.” (Id. at p. 1447.)
Defendant acknowledges that Zangari has already held that in Oregon the intent necessary for theft is equivalent to the intent necessary for theft in California. He argues, however, that cases decided since Zangari cast doubt upon its holding. Defendant argues that People v. Avery (2002) 27 Cal.4th 49, 58 (Avery), requires that a defendant have intended to maintain possession of property for an “unreasonable time so as to deprive the person of a major portion of its value or enjoyment”in order to support a finding of theft in a case where the defendant intended only to take the property temporarily. According to defendant, therefore, if he had intended to immediately dispose of the beer, then his act was not a felonious taking. We do not read Avery so narrowly.
The issue in Avery was whether theft in Texas was equivalent to theft in California. The Texas statute defined “theft” as the intent to deprive the owner of property and “deprive” as “ ‘withhold[ing] property from the owner permanently or for so extended a period of time that a major portion of the value or enjoyment of the property is lost to the owner . . . .’ ” (Avery, supra, 27 Cal.4th at p. 54, quoting Tex. Penal Code Ann. §§ 31.01, subd. (2)(A), 31.03, subd. (a).) Avery concluded that the intent to deprive the owner of property only temporarily, but for so extended a period of time as to deprive the owner of a major portion of its value or enjoyment, satisfied the California requirement of intent to deprive the owner of the property permanently. (Avery, supra, at pp. 54, 58.) Avery reached that conclusion by reviewing the common law, which forms the basis for California’s concept of what it means to permanently deprive an owner of property. In so doing, Avery noted that the common law recognizes that an intent to steal may be found even though the defendant’s primary purpose in taking the property is not to permanently deprive the owner of possession. (Id. at p. 55, citing People v. Davis, supra, 19 Cal.4th at p. 307.) Avery observed that there are several categories of cases in which a temporary taking may amount to theft. Avery’s holding does not diminish the authority of those cases. Rather, Avery relied upon them to determine whether the Texas law fell within the general contours defined by the common law. One such category of case describing theft at common law is that where “the defendant takes property with intent to use it temporarily and then to abandon it in circumstances making it unlikely the owner will recover it.” (Avery, supra,27 Cal.4th at p. 56.) Subdivision (2)(b) of the Oregon statute, which defines intent to deprive as the intent to “[d]ispose 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)(b)), is perfectly consistent with this common law category of intent for theft and, therefore, consistent with the law of theft in California.
It follows that, even if the Oregon court found that defendant intended to put the beer in the dumpster immediately and not to retain possession of it for an unreasonable time, he would still be guilty of robbery under California law because, as defendant himself insists, people are unlikely to put their hands in a dumpster to retrieve two bottles of beer. To be sure, placing the beer in a dumpster is the same thing as throwing it away. Defendant’s placing the beer in the dumpster created the substantial risk that the victim would be permanently deprived of the property. It is immaterial that defendant might not have intended to retain possession of it for an unreasonable length of time.
Defendant argues that an Oregon case decided after Zangari shows that Zangari was incorrectly decided. In State v. Christine (2004) 193 Or.App. 800, the defendants were a couple who had lost custody of their children. When a state-owned van in which the children were riding was stopped at a rest stop, the father took possession of the van by threatening the driver with a gun. He then drove the van to a secluded area and parked it where it was “not readily visible from the nearby freeway” and “obscured by blackberry vines that were taller than the van.” (Id. at p. 804.) The children were transferred to another vehicle and driven off. The defendants were convicted of first degree robbery based upon their forcible theft of the van. (Id. at pp. 804-805.) The issue on appeal was whether the evidence was sufficient to establish that the defendants acted with the mental state required for the crime of robbery. (Id. at p. 805.)
The Christine court concluded that the evidence was sufficient because the jury could have found that when defendants stole the van, “they intended to use it and then abandon it exactly as they eventually did,” and left it in a remote location where it “would not be readily visible and might go undetected by police or by anyone who would return the van to the state.” (State v. Christine, supra,193 Or.App. at p. 811.) Defendant maintains that such a finding would not support a robbery conviction in California. But again, defendant bases his argument upon his view that Avery requires an intent to take the property for an unreasonable time. As we explained above, under the common law, and, therefore, under California law, if the temporary taking is such that the owner is deprived of the value of the property, or that there is a substantial risk that the owner will be deprived of the value of the property, then the requisite intent is established. Christine is consistent with this common law view. Indeed, in reaching its conclusion that the evidence could support a finding sufficient to prove theft, the court explained that under the common law, “[w]hether the person acted with the requisite intent depended on whether he or she intended to return the property to the owner or, instead, to dispose of or abandon the property under circumstances that risked its loss to the owner.” (Id. at pp. 807-808.) The court noted that an intent to take the property, use it for a temporary purpose, and then return it is not an intent to steal. (Id. at p. 808.) But an intent to take the property, use it for a temporary purpose and then abandon it, may be an intent to steal. “ ‘An intent of the latter type is not an intent to steal if the intended abandonment is under such circumstances that the property will in all probability be restored to the owner; but it is an intent to steal if the intended abandonment will create a considerable risk of permanent loss to the owner.’ ” (Ibid.) This explanation accurately describes the common law as set forth in Avery.
In conclusion, whether the Oregon court found that defendant intended to retrieve the beer and drink it himself or that he intended to merely place it in the dumpster where the victim would be unlikely to recover it, the court necessarily concluded that defendant’s intent was to permanently deprive the victim of the property as that concept is defined by the common law and the law of California. Accordingly, the trial court did not err in concluding that the Oregon conviction was equivalent to a California conviction for robbery and, therefore, that it was a strike under our three strikes law.
III. Disposition
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Elia, J.