Reset A A Font size: Print

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

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

No. B099330.

Decided: April 16, 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.


Appellant, Russell Donald Benson, was convicted by a jury of petty theft with a prior (Pen.Code,1 § 666), 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.  


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 (b), 12022.7, 217 (Repealed).)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.


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 [113 S.Ct. 1770, 1777] 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


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 theft’ punishable as either a misdemeanor or a felony, if the defendant had been earlier convicted and served time for ‘any felony.’   As noted above, present section 666 combines the two former sections and provides that a defendant who has been convicted of and imprisoned for enumerated theft-related crimes (certain misdemeanors and felonies) and who is subsequently convicted of petty theft ‘is punishable by imprisonment in the county jail not exceeding one year, or in the state prison.’ ”  (People v. Bouzas, supra, 53 Cal.3d at p. 471, 279 Cal.Rptr. 847, 807 P.2d 1076, emphasis added.) 9

Similar language was used in Miranda v. Superior Court (1995) 38 Cal.App.4th 902, 45 Cal.Rptr.2d 498, a case in which the issue was whether a Three Strike's prior had to be pled and proved at the preliminary hearing.   There, the court stated:  “By the provisions of section 666, for example, a petty theft may be charged as a felony if a defendant has been previously convicted of one of several theft-related crimes.”  (Miranda v. Superior Court, supra, at pp. 907-908, 45 Cal.Rptr.2d 498;  see also People v. Stevens, supra, 48 Cal.App.4th at p. 987, 56 Cal.Rptr.2d 13[“[W]hen a defendant has suffered any of the enumerated theft-related prior convictions, a subsequent petty theft can be a felony. (§ 666.)”].)

 It is clear from reading the foregoing cases that the statements in each opinion that section 666's priors are “theft-related” were not necessary to the disposition of the questions in those cases and therefore are not authority for that proposition.  “ ‘The statement of a principle not necessary to the decision will not be regarded either as a part of the decision or as a precedent that is required by the rule of stare decisis to be followed ․, no matter how often repeated․’ ”  (People v. Squier (1993) 15 Cal.App.4th 235, 240, 18 Cal.Rptr.2d 536.)  “Absent persuasive precedent on the issue, resolution of the question presented requires this court to determine the Legislature's intent in enacting section [666]” and, in the process of that determination, to follow “ ‘accepted rules for statutory construction․’ ”  (County of Tulare v. Campbell (1996) 50 Cal.App.4th 847, 853, 57 Cal.Rptr.2d 902.)

 We turn to those rules.  “[I]n construing a statute, a court [must] ascertain the intent of the Legislature so as to effectuate the purpose of the law.  [Citation.]   In determining that intent, we first examine the words of the respective statutes:  If there is no ambiguity in the language of the statute, then the Legislature is presumed to have meant what it said, and the plain meaning of the language governs.  [Citation.]   Where the statute is clear, courts will not interpret away clear language in favor of an ambiguity that does not exist.  [Citations.]   If, however, the terms of a statute provide no definitive answer, then courts may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history.  [Citation.]   We must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.  [Citation.]”   (People v. Coronado (1995) 12 Cal.4th 145, 151, 48 Cal.Rptr.2d 77, 906 P.2d 1232, internal quotation marks omitted.)

 With these rules in mind, we pause briefly to discuss one of the extrinsic sources used for determining legislative intent, the doctrine of noscitur a sociis.   That doctrine “declares that the meaning of a word may be ascertained by reference to the meaning of other terms which the Legislature has associated with it in the statute, and that its scope may be enlarged or restricted to accord with those terms.  [Citations.]”  (People v. Rogers (1971) 5 Cal.3d 129, 142, 95 Cal.Rptr. 601, 486 P.2d 129, conc. and dis. opn. of Mosk, J.) If we place reliance on the doctrine of noscitur a sociis, then section 666 must be limited to theft-related burglaries given that all of the other prior convictions supporting a felony conviction in section 666 are specifically theft-related.   But such doctrine is merely an extrinsic aid to interpretation and is “to be used only when the clear meaning of the words used in the statute is doubtful․”  (People v. Fields (1980) 105 Cal.App.3d 341, 344, 164 Cal.Rptr. 336, 2A Sutherland, Statutory Construction (5th ed.1992) § 47.16, p. 183.)   It “may not be used to create doubts or offset the plain meaning of the statutes [citation].”  (People v. Fields, supra, at p. 344, 164 Cal.Rptr. 336.)

Initial reliance on the doctrine of nocitur a sociis puts the proverbial “cart before the horse” which the rules preclude.   Thus, we begin with the question of whether the word “burglary” has a plain meaning.   Since its enactment in 1872 the crime of burglary has been amended many times over the years.   Each amendment has expanded the list of structures to be protected, but one phrase has remained constant.   The language “Every person who enters ․ with intent to commit grand or petit larceny or any felony is guilty of burglary” has never changed.10  While the word “burglary” may lead a layperson to envision a thief breaking into a structure with the intent to steal property and thus appear more like the other theft-related prior convictions contained in section 666, its legal meaning has never been in doubt.   For 125 years, burglary has included in its definition the entering of a structure with the intent to commit “any felony.”   It has never been limited to the intent to commit a “theft-related” crime.   This dual definition of burglary is so clear and unambiguous and has become so firmly established in our legal lexicon that we cannot use the doctrine of noscitur a sociis to reach a different conclusion.   If the Legislature intended to restrict the crime of burglary in section 666 to theft-related burglaries, it would have done so.   It did not.

 The Legislature has not been without opportunities to impose such a restriction.   Our review of a century of amendments to section 666 reveals a movement away from increased punishment for petty thieves who have committed “any felony” toward punishing petty thieves who have committed theft-related misdemeanors and felonies, but the Legislature has continued to use the term “burglary” without any qualification.   If the Legislature had intended to restrict the statute, it has had numerous occasions over the years to insert the phrase “with intent to commit grand or petit larceny” in section 666.   It has not done so.   Thus, we are brought full circle to the basic principle that “the Legislature is presumed to have meant what it said, and the plain meaning of the language governs.”  (People v. Coronado, supra, 12 Cal.4th at p. 151, 48 Cal.Rptr.2d 77, 906 P.2d 1232, internal quotation marks & citation omitted.)  “ ‘This court has no power to rewrite the statute so as to make it conform to a presumed intention which is not expressed․’ ”  (People v. Hill (1995) 37 Cal.App.4th 220, 225, 44 Cal.Rptr.2d 11.)

Moreover, there are two important aspects of the crime of burglary that are so similar to the crime of theft that they provide a reasonable explanation as to why the Legislature has not seen fit to restrict burglaries in section 666 to only those which are theft-related.   A burglary is an entry which invades another's possessory right in a building and it can only be committed by a person who has no right to be in the building.  (People v. Gauze (1975) 15 Cal.3d 709, 714, 125 Cal.Rptr. 773, 542 P.2d 1365;  People v. Salemme (1992) 2 Cal.App.4th 775, 781, 3 Cal.Rptr.2d 398.)   Theft is also an invasion of a person's possessory rights to property and can only be committed by a person who has no right to possess the property.   Thus, the interference with the possessory rights of another is a common thread which binds burglary and theft whether or not the burglary was committed with theft in mind.   That being so, we conclude that to give burglary an unrestricted definition does not lead to an absurd result.


Dual Use of Burglary Conviction

 Appellant contends that if we conclude, as we have, that his prior burglary conviction may be used to elevate his crime of petty theft to a felony, then statutory and constitutional provisions against dual use of facts to increase punishment preclude its use as a “strike.”   Appellant relies on the holdings in People v. Jones (1993) 5 Cal.4th 1142, 22 Cal.Rptr.2d 753, 857 P.2d 1163, and People v. Prather (1990) 50 Cal.3d 428, 439, 267 Cal.Rptr. 605, 787 P.2d 1012, and the double jeopardy clauses of the state and federal Constitutions to support this contention.   The same arguments were made in People v. White Eagle (1996) 48 Cal.App.4th 1511, 56 Cal.Rptr.2d 749, a case in which a defendant's robbery conviction was used to convert his petty theft offense to a felony under section 666 and to invoke the second strike punishment provisions of section 667, subdivision (e)(1).11  We reject appellant's arguments for the reasons set forth in People v. White Eagle, supra, 48 Cal.App.4th at pages 1516-1520, 56 Cal.Rptr.2d 749, with which we agree.

In White Eagle, the court quickly disposed of the appellant's claim that “the use of his prior conviction to impose multiple punishment violates double jeopardy․”  (48 Cal.App.4th at p. 1519, 56 Cal.Rptr.2d 749.)   The court pointed out the “most obvious flaw” in that argument.   The double jeopardy clause of the Fifth Amendment “ ‘protects against a second prosecution for the same offense after acquittal.   It protects against a second prosecution for the same offense after conviction.   And it protects against multiple punishment for the same offense.’ ”  (People v. White Eagle, supra, 48 Cal.App.4th at pp. 1519-1520, 56 Cal.Rptr.2d 749, citing North Carolina v. Pearce (1969) 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656.)   Neither the defendant in White Eagle nor the appellant herein is being punished for the crimes he previously committed.   Each “is being punished under the sentencing provisions of section 667, subdivision (e) for the theft he committed in 1994.”  (48 Cal.App.4th at p. 1520, 56 Cal.Rptr.2d 749.)   Like White Eagle, appellant's 1994 offense is made a felony under section 666 as a result of his having suffered the 1980 burglary conviction, but the 1994 petit theft and the 1980 burglary are two distinct offenses.  (48 Cal.App.4th at p. 1520, 56 Cal.Rptr.2d 749.)

The court in White Eagle also held that use of a prior felony to elevate misdemeanor theft to a felony and for punishment under the Three Strikes provisions was not precluded by the Jones and Prather cases.   It reasoned that “[u]nlike the sentencing provisions at issue in Jones and Prather, section 666 and section 667, subdivision (e) are not enhancements.  [¶] Subdivision (e) of section 667 provides for an alternate sentencing scheme when the defendant has a prior serious or violent felony conviction;  it is not an enhancement.  [Citations.]   While section 666 has been characterized as a ‘sentence-enhancing statute’ (see People v. Bouzas (1991) 53 Cal.3d 467, 479 [279 Cal.Rptr. 847, 807 P.2d 1076] ), in light of the definition of the term ‘enhancement,’ section 666 is more precisely a statute which gives the court discretion to treat the offense as either a misdemeanor or a felony for the purpose of punishment.  [Citation.]”   (People v. White Eagle, supra, 48 Cal.App.4th at pp. 1517-1518, 56 Cal.Rptr.2d 749.)

This result in White Eagle is supported by the holding in People v. Coronado, supra, 12 Cal.4th 145, 48 Cal.Rptr.2d 77, 906 P.2d 1232.   In Coronado, the defendant was convicted of driving under the influence (Veh.Code, § 23152) which is ordinarily punished as a misdemeanor.   However, the defendant admitted three prior driving under the influence convictions which made his crime punishable as a felony or a misdemeanor.  (Veh.Code, § 23175, subd. (a).)  The defendant also admitted three prior state prison terms within the meaning of section 667.5, subdivision (b).   One of the defendant's prior state prison terms was served for one of the prior DUI convictions used to elevate his current DUI offense to a felony.   The defendant was sentenced to state prison for the high term of three years for felony driving under the influence plus three one-year enhancements were added pursuant to section 667.5, subdivision (b) for the prior prison terms.

On appeal, the defendant argued that the legislative history of Vehicle Code section 23175 indicated the Legislature intended three years to be the maximum penalty applicable to repeat drunk drivers and the use of a prior prison term for enhancement purposes was barred if the underlying conviction is used to qualify the current offense for felony punishment.

The Supreme Court took a quite different view.  “․ Vehicle Code section 23175's purpose to authorize felony punishment of habitual drunk drivers is fully compatible with section 667.5(b)'s purpose to provide for additional punishment of a felon whose service of a prior prison term failed to deter future criminality.   As it stands, Vehicle Code section 23175 treats both prior misdemeanor and felony habitual drunk drivers in the same manner-for both categories of offenders, the current offense may be elevated to a felony.   But where one (or more) of the requisite prior convictions is a felony for which a prison term was served-reflecting a more serious crime and a more blameworthy offender-application of both statutes leads to the rational result that a more culpable habitual drunk driver receives greater punishment.”  (People v. Coronado, supra, 12 Cal.4th at p. 153, 48 Cal.Rptr.2d 77, 906 P.2d 1232.)   There is no persuasive reason for reaching a different result with respect to the sentencing provisions of section 667, subdivisions (b) through (i).

Appellant next attempts to persuade us that the Three Strikes law is a general recidivist punishment statute whereas section 666 is a specific statute punishing recidivist thieves.   He argues that “ ‘where the general statute standing alone would include the same matter as the special act, and thus conflict with it, the special act will be considered as an exception to the general statute whether it was passed before or after such general enactment.’ ”  (Quoting In re Williamson (1954) 43 Cal.2d 651, 654, 276 P.2d 593;  see also People v. Thomas (1992) 4 Cal.4th 206, 213, 14 Cal.Rptr.2d 174, 841 P.2d 159;  In re Boatwright (1932) 216 Cal. 677, 683, 15 P.2d 755.)   The defendant in Coronado made a similar argument that Vehicle Code section 23175 is a “special statute” which controls over section 667.5, subdivision (b), a “general statute.”   But the Supreme Court was not persuaded in that case.   Nor are we in this case.

“The rule does not apply ․ unless each element of the general statute corresponds to an element on the face of the specific [sic ] statute or it appears from the entire context that a violation of the special statute will necessarily or commonly result in a violation of the general statute.  [Citations.]”  (People v. Coronado, supra, 12 Cal.4th at p. 154, 48 Cal.Rptr.2d 77, 906 P.2d 1232, internal quotation marks omitted, citing People v. Jenkins (1980) 28 Cal.3d 494, 502, 170 Cal.Rptr. 1, 620 P.2d 587;  see also People v. Watson (1981) 30 Cal.3d 290, 295-296, 179 Cal.Rptr. 43, 637 P.2d 279.)

The elements in section 667, subdivisions (b) through (i) do not correspond with the elements in section 666.  Section 666 provides a punishment scheme which affects petty thieves who have previously been incarcerated for a specifically designated misdemeanor or felony conviction.   Punishment may not be imposed under section 667, subdivision (b) unless the defendant is convicted of a felony and has “been previously convicted of serious and/or violent felony offenses.”  Section 667, subdivision (b) does not require incarceration for the prior conviction as does section 666.   In sum, felony punishment is permissible under section 666 even where the defendant has never been convicted of a felony.   That is not possible under section 667.   Nor will application of the felony punishment provisions of section 666 “necessarily or commonly” result in the application of the punishment provisions of section 667, subdivisions (b) through (i).   Even though a burglary conviction may also elevate a current theft offense to a felony under section 666, it is not necessarily or commonly the case that the qualifying burglary conviction will have been a residential burglary triggering application of the Three Strikes law.   The “special over general rule” has no more application here than it did in Coronado.  (People v. Coronado, supra, 12 Cal.4th at pp. 154-155, 48 Cal.Rptr.2d 77, 906 P.2d 1232.)


Two Counts Equal Two Strikes

 We turn to appellant's contention that it is error to treat his 1980 convictions as two “strikes” 12 because his burglary and assault with intent to commit murder convictions were part of a single act against a single victim committed at the same time with a single intent and were punished as a single crime pursuant to section 654.   Appellant relies on various rules of statutory construction in his effort to convince us that the Legislature intended that first and second strikes be separate “cases” not separate “counts” within one case.   Again, we are not persuaded.

We begin with section 954.   That statute provides that defendants may be charged with and convicted of “two or more different offenses connected together in their commission, or different statements of the same offense ․, under separate counts” in the same case.  (People v. Pearson (1986) 42 Cal.3d 351, 354, 228 Cal.Rptr. 509, 721 P.2d 595.)   This leads us to section 654 which states:  “An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one;  ․” This section has been interpreted to preclude multiple punishment not only for individual criminal acts, but also for courses of conduct that are motivated by a single intent or objective.  (People v. Pearson, supra, at p. 359, 228 Cal.Rptr. 509, 721 P.2d 595;  People v. Beamon (1973) 8 Cal.3d 625, 636-639, 105 Cal.Rptr. 681, 504 P.2d 905;  Neal v. State of California, supra, 55 Cal.2d at p. 19, 9 Cal.Rptr. 607, 357 P.2d 839.)   Section 654 “bars multiple punishment, not multiple conviction” (In re Alberto R. (1991) 235 Cal.App.3d 1309, 1314, 1 Cal.Rptr.2d 348) and, in some instances, one act which violates more than one statute “may even be separately punished.”  (People v. Valdez (1994) 23 Cal.App.4th 46, 49, 28 Cal.Rptr.2d 236.)

The purpose of this procedure developed to reconcile the policies of permitting multiple convictions while protecting the defendant from multiple punishment was to give the trial court “the discretion in sentencing on more than one count to select the count on which sentence is to be carried out, even if it is a count carrying a lesser penalty, and to stay sentence on the remaining counts as to which sentence is imposed.  [Citations.]”  (People v. Thompson (1994) 24 Cal.App.4th 299, 308, 29 Cal.Rptr.2d 847;  People v. Pearson, supra, 42 Cal.3d at p. 360, 228 Cal.Rptr. 509, 721 P.2d 595.)

To prevent future multiple enhancements based upon stayed convictions, the court in Pearson developed the following rule:  “Any subsequent sentences imposed on defendant can be enhanced on the basis of the convictions for which he served a sentence;  but convictions for which service of sentence was stayed may not be so used unless the Legislature explicitly declares that subsequent penal or administrative action may be based on such stayed convictions.   Without such a declaration, it is clear that section 654 prohibits defendant from being disadvantaged in any way as a result of the stayed convictions.”   (People v. Pearson, supra, 42 Cal.3d at p. 361, 228 Cal.Rptr. 509, 721 P.2d 595, emphasis added;  In re Alberto R., supra, 235 Cal.App.3d at pp. 1314-1315, 1 Cal.Rptr.2d 348.)

We now turn to subdivision (d) of section 667 which provides:  “Notwithstanding any other law and for the purposes of subdivisions (b) to (i), inclusive, a prior conviction of a felony shall be defined as:  [¶] (1) Any offense defined in subdivision (c) of Section 667.5 as a violent felony or any offense defined in subdivision (c) of Section 1192.7 as a serious felony in this state.   The determination of whether a prior conviction is a prior felony conviction for purposes of subdivisions (b) to (i), inclusive, shall be made upon the date of that prior conviction and is not affected by the sentence imposed unless the sentence automatically, upon the initial sentencing, converts the felony to a misdemeanor.   None of the following dispositions shall affect the determination that a prior conviction is a prior felony for purposes of subdivisions (b) to (i), inclusive:  [¶] (A) The suspension of imposition of judgment or sentence.  [¶] (B) The stay of execution of sentence.” 13

Appellant presents us with 24 pages of briefing as to why the statute is ambiguous.   We repeat the foremost rule of statutory construction:  “Where the statute is clear, courts will not interpret away clear language in favor of an ambiguity that does not exist.”  (People v. Coronado, supra, 12 Cal.4th at p. 151, 48 Cal.Rptr.2d 77, 906 P.2d 1232, internal quotation marks & citation omitted.)   We need go no further than the language used in the Three Strikes law and need not indulge in analysis based upon all of the various principles used when the language and intent of a statute is unclear.   We must conclude, based upon the plain language of the statute, that the Legislature and the voters through the initiative process clearly intended that each conviction for a serious or violent felony counts as a prior conviction for sentencing purposes under the Three Strikes law even where the convictions were based upon conduct against a single victim committed at the same time with a single intent and were punished as a single crime pursuant to section 654.  (Cf. People v. Askey (1996) 49 Cal.App.4th 381, 386, 56 Cal.Rptr.2d 782;  People v. Superior Court (Arevalos) (1996) 41 Cal.App.4th 908, 48 Cal.Rptr.2d 833;  People v. Allison (1995) 41 Cal.App.4th 841, 844, 48 Cal.Rptr.2d 756.)


Remand for Re-Sentencing

 Appellant asks that we remand this case to the trial court for its exercise of discretion on whether either or both of the prior convictions should be stricken in the interest of justice, pursuant to section 1385.  (See People v. Superior Court (Romero ), supra, 13 Cal.4th at p. 530, fn. 13, 53 Cal.Rptr.2d 789, 917 P.2d 628.)   He also argues that the punishment imposed, as to him, violates the federal prohibition against cruel and unusual punishments and the similar state ban on cruel or unusual punishment.   Respondent argues that no such violation is established, and that it would be an abuse of discretion for the trial court to strike either prior conviction.

We are satisfied that a remand is proper in this case.   Because we shall remand, we need not and do not decide now whether the punishment ultimately selected is constitutionally excessive, or whether any order striking a prior conviction under section 1385 would be an abuse of discretion.

When appellate courts are faced with a “silent record” on the issue of section 1385 discretion in the context of the Three Strikes law, the usual disposition is to deny remand.   That has been the position of this division, as well as other courts.   But this case does not present a truly silent record.  (Cf. People v. White Eagle, supra, 48 Cal.App.4th at p. 1523, 56 Cal.Rptr.2d 749.)   The issue of judicial discretion to strike a prior was raised before the court, and the judge then presiding concluded the court lacked the power to strike.   This was not the judge who presided at the trial and who imposed the sentence in the case, but the issue was specifically raised in the case.   The sentencing judge determined, on the record, that the present offense-a wobbler-should not be treated as a misdemeanor, a course that would have obviated Three Strikes sentencing.   Indeed, as we have seen, since the present offense involved theft of merchandise worth less than $50, it could have been treated as an infraction.   Appellant's prior convictions were serious but were committed many years before, and his record reflects the commission of only one minor misdemeanor offense from then to the present offense.

We also are aware that at the time of sentencing in this case, most appellate courts had ruled that section 1385 discretion to strike did not survive enactment of the Three Strikes laws.   Given all of the circumstances, we cannot have confidence that the trial court was aware of its power to strike a prior conviction and elected not to exercise it.   The just solution in this case is to remand it for resentencing.   On remand, the trial court may exercise its power to strike under section 1385, or not.   But it will be fully aware that it has the discretionary power to decide.   Naturally, we intimate no opinion on how the trial court should exercise its discretion.


The judgment of conviction is affirmed, and the matter is remanded for resentencing.


FN1. All statutory citations are to the Penal Code unless otherwise indicated..  FN1. All statutory citations are to the Penal Code unless otherwise indicated.

2.   The abstract of judgment from appellant's 1980 conviction reflects that the assault conviction was stayed although the box indicating the stay was pursuant to section 654 was not checked by the clerk.   Both parties assume the stay was pursuant to section 654 which is a reasonable assumption.   Appellant testified the two convictions involved one incident.   According to the 1980 police and probation reports, appellant entered his neighbor's apartment and stabbed her over 20 times with a knife.   Thus, it is reasonable to conclude that appellant entered the victim's apartment with the intent to commit murder which would require the stay to be imposed pursuant to section 654.  (Neal v. State of California (1960) 55 Cal.2d 11, 19, 9 Cal.Rptr. 607, 357 P.2d 839.)

3.   A Target store security guard in the Lancaster area watched appellant remove 10 packs of cigarettes from a carton, put them in his coat pocket and leave the store without paying for them.   The guard called for backup and, when they tried to detain appellant, a struggle ensued in which the guard testified that appellant punched and kicked at the store personnel before he was restrained.   Appellant signed a form in which he admitted taking the cigarettes without the intent to pay for them.   Appellant was arrested and explained that his car broke down, he had no money, and no way to get to a job offer in the San Fernando Valley.   Appellant confessed to stealing the cigarettes to sell or trade for transportation back to the Valley but denied that he attempted to punch or kick the store personnel.

4.   Appellant also was charged with second degree robbery and burglary.   The jury found appellant not guilty of robbery and deadlocked on the charge of commercial burglary which was dismissed.

5.   “Offenses punishable as felonies or misdemeanors are traditionally called ‘wobblers.’ ”  (People v. Stevens (1996) 48 Cal.App.4th 982, 987, fn. 12, 56 Cal.Rptr.2d 13.)

6.   We have determined that it is appropriate to resolve the proper interpretation of section 666 notwithstanding respondent's suggestion that “appellant has not demonstrated that his burglary conviction did not involve a theft-related offense.”   While no transcripts of the 1980 trial were entered into evidence, the original police reports and probation reports were received in evidence on the issue of whether appellant's prior convictions should be viewed as only one conviction because they were committed incident to a single objective, namely, that of killing a female neighbor.   There is simply no evidence in any of those reports to support respondent's speculation that perhaps appellant also stole something from the victim's apartment.   Nevertheless, to avoid any possible prejudice to the People, we will follow Moschetta's lead and consider appellant's contention with the understanding that on remand, if the People wish to preserve this issue to avoid further litigation on the point, the People may present any theft-related facts which were not presented to the trial court.  (In re Marriage of Moschetta, supra, 25 Cal.App.4th at p. 1228, 30 Cal.Rptr.2d 893.)

7.   If charged as an infraction, petty theft is “punishable by a fine not exceeding two hundred fifty dollars ($250).” (§ 490.1.) If charged as a misdemeanor, theft is “punishable by [a] fine not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail not exceeding six months, or both.” (§ 490.)

8.   Section 459 provides in pertinent part:  “Every person who enters any house, ․, with intent to commit grand or petit larceny or any felony is guilty of burglary.”  (Italics added.)

9.   As enacted in 1872, section 666 read in pertinent part:  “Every person who, having been convicted of any offense punishable by imprisonment in the State Prison, commits any crime after such conviction, is punishable therefor, as follows:  [¶] ․ [¶] 3. If the subsequent conviction is for petit larceny, or any attempt to commit an offense which, if committed, would be punishable by imprisonment in the State Prison not exceeding five years, then the person convicted of such subsequent offense is punishable by imprisonment in the State Prison not exceeding five years.”After its enactment, section 666 went through a number of transmutations.   In 1903 the introductory paragraph was amended to refer to “Every person who, having been convicted ‘of petit larceny, or’ of any offense, etc.”   The 1931 amendment made the section applicable to every person having been convicted of petit larceny “or petit theft ” and subdivision 3 was made applicable if the subsequent conviction is for “petit theft.”  By the year 1976, section 666 read:  “Every person who, having been convicted of petit larceny or petit theft and having served a term therefor in any penal institution or having been imprisoned therein as a condition of probation for such offense, commits any crime after such conviction is punishable therefor as follows:  [¶] ․ [¶] 3. If the subsequent conviction is for petit theft, then the person convicted of such subsequent offense is punishable by imprisonment in the county jail not exceeding one year, or in the state prison not exceeding five years.”   A 1977 amendment added the offenses of grand theft, burglary and robbery to the list of prior convictions.   Auto theft under Vehicle Code section 10851 was added to the list in 1986, felony receiving stolen property was added in 1988, and carjacking was added in 1993.  (See Historical Note, 49 West's Ann.Pen.Code (1988 ed.) § 666, pp. 651-652, and Historical and Statutory Notes, supra, (1997 ed.) pocket supp., p. 229.)

10.   As enacted in 1872, section 459 read:  “ ‘Every person who, in the night-time, forcibly breaks and enters, or without force enters through any open door, window, or other aperture, any house, room, apartment, or tenement, or any tent, vessel, water craft, or railroad car, with intent to commit grand or petit larceny, or any felony, is guilty of burglary.’ ”  (See Historical Note, 49 West's Ann. Pen.Code (1988 ed.) § 459, p. 19.)

11.   The robbery prior conviction was also used as a one-year enhancement of White Eagle's sentence pursuant to section 667.5, subdivision (b).  That statute is not an issue in this case.

12.   Residential burglary is a serious felony and assault with the intent to commit murder is both a serious and violent felony. (§§ 667.5, subd. (c)(8) & (12), 1192.7, subd. (c)(8), (9), (18), & (23).)

13.   The language in the Three Strikes initiative is virtually identical. (§ 1170.12, subd. (b)(1)(B).)

BARON, Associate Justice.

EPSTEIN, Acting P.J., and ARANDA,* J., concur.