PEOPLE v. BRUNN

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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Scott Craig BRUNN, Defendant and Appellant.

D004688.

Decided: April 27, 1987

Stephen C. Becker, San Francisco, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Steve White, Michael D. Wellington and Roberta L. Woodrick, Deputy Attys. Gen., for plaintiff and respondent.

Scott Craig Brunn appeals from the judgment entered on his guilty plea to a single felony count of petty theft with a prior robbery conviction for which he served a prison term (Pen.Code, § 484/666 1) and his admission of the same prior robbery conviction for purposes of section 667.5 2 , subdivision (b).   We conclude that on the facts of this case the imposition of a one-year enhancement under section 667.5, subdivision (b) for the same robbery which served as the basis for the prior under section 666 constituted unauthorized double punishment for the same act.   We therefore vacate the additional one-year sentence and remand for resentencing.

In People v. Edwards (1976) 18 Cal.3d 796, 135 Cal.Rptr. 411, 557 P.2d 995 the California Supreme Court explained that a trial court may not rely on a defendant's prior conviction for the dual purpose of augmenting the defendant's sentence when the prior represents an element of the charged offense.  (At p. 800, 135 Cal.Rptr. 411, 557 P.2d 995.)   In Edwards the charged offense was being an ex-felon in possession of a firearm;  the increased sentence was imposed under a provision of the Penal Code which required an additional period of incarceration if the defendant had been previously convicted of a felony.   Thus, but for Edwards' previous felony conviction he would not have been guilty of a crime and would not have been required to serve additional time in prison.  “[W]hen a prior conviction constitutes an element of criminal conduct which otherwise would be noncriminal, the minimum sentence may not be increased because of the indispensable prior conviction.”  (Ibid.)

This rule, in somewhat broader form was reaffirmed in People v. Wilks (1978) 21 Cal.3d 460, 146 Cal.Rptr. 364, 578 P.2d 1369:

“[A] judgment is in error ․ [if] it allows the same priors to be used both as an element of the substantive offense and to enhance punishment for that same offense.”  (At p. 470, 146 Cal.Rptr. 364, 578 P.2d 1369.)

Citing Edwards, the identical issue before us was decided in favor of the defendant in People v. Ancira (1985) 164 Cal.App.3d 378, 210 Cal.Rptr. 527:

“Ancira correctly contends that the court improperly imposed a one-year enhancement under Penal Code section 667.5 for the prior burglary conviction that was the basis for the charge of violating Penal Code section 666.   The clerk's transcript and the court's comments at the sentencing hearing demonstrate that an enhancement was imposed for the burglary underlying the section 666 violation.”  (At p. 382, 210 Cal.Rptr. 527.)

The Attorney General argues that Ancira was decided incorrectly;  Edwards and Wilks are distinguishable;  and the following cases should control our decision—People v. Welge (1980) 101 Cal.App.3d 616, 161 Cal.Rptr. 686;  People v. Gaines (1980) 112 Cal.App.3d 508, 169 Cal.Rptr. 381;  People v. Green (1982) 134 Cal.App.3d 587, 184 Cal.Rptr. 652;  and People v. Hurley (1983) 144 Cal.App.3d 706, 192 Cal.Rptr. 805.   We partially agree.

 From a theoretical perspective the Attorney General is correct in asserting that service of a prior prison term, the essential element of a section 667.5, subdivision (b) enhancement, is not necessarily an element of section 666.   The legal predicate for petty theft with a prior is service of any term in a penal institution which, of course, includes even a few days in county jail as a condition of probation.   Accordingly, the element of the prior prison term served for any felony required by section 667.5, subdivision (b) is not coextensive with service of a term in any penal institution under section 666.   Thus in theoretical terms the element of the section 667.5, subdivision (b) enhancement is not always an element of the felony offense of petty theft with a prior.   Seen in this light Edwards and Wilks are distinguishable.   And if Ancira is read as relying solely on Edwards it is understandable why the Attorney General would say that Ancira is wrong.   Our examination of the issue before us, however, cannot be limited to a theoretical inquiry.   We must examine the facts.

 The reasonable factual inference drawn from this record is that the sentencing court used the same robbery to both enhance the sentence under section 667.5, subdivision (b) and for the prior under section 666.3  A fundamental principle of our criminal law precludes double punishment.   Under section 654 an act which is made punishable in different ways by different statutory provisions may be punished under either of such provisions, but in no case can it be punished under more than one.   Here the legislative intent underlying section 666 was to elevate criminal conduct constituting petty theft from a misdemeanor to a felony when the defendant had previously been convicted of petty theft, grand theft, burglary, or robbery provided the earlier conviction had resulted in imprisonment.   The Legislature concluded that persons who insisted upon committing theft related offenses having been previously incarcerated for a previous offense should face increased punishment.   Greater punishment for the criminal recidivist is certainly a rational response by the Legislature in its attempt to define the appropriate punishment for specified criminal conduct.   The same legislative intent of increased punishment for the recidivist is also reflected in section 667.5, subdivision (b) which requires the imposition of an additional one-year prison term if the convicted felon had previously served a prison term.   The Legislature did not expressly provide, however, that the enhancement could be imposed even when the prior prison term was an element of the offense.   Had the Legislature wanted increased punishment under both sections it could have so provided.  (Compare § 12022.5;  see People v. Moreno (1982) 128 Cal.App.3d 103, 109, 179 Cal.Rptr. 879.)   Lacking any legislative expression that punishment for the recidivist should be imposed under both sections 666 and 667.5, subdivision (b), double punishment for the same act is prohibited.   Accordingly, taking a more expansive route than Ancira we nonetheless reach the same result.

We are not persuaded to a different conclusion by the cases cited above which the People say represent an unbroken line of authority which permit punishment for the enhancement and for the underlying felony.   Those cases involve the well accepted distinction between Penal Code sections which include only “conviction” of a prior felony element and section 667.5's requirement of a “prior prison term.”  (See e.g., People v. Gaines, supra, 112 Cal.App.3d 508, 515–517, 169 Cal.Rptr. 381.)   The plain language of section 666 requires both conviction of a theft related offense and a term in a penal institution.

DISPOSITION

The judgment is modified by striking the one year enhancement under section 667.5, subdivision (b).   The case is remanded for resentencing.

FOOTNOTES

FN1. All statutory references are to the Penal Code unless otherwise specified.Penal Code section 666 provides as follows:“Every person who, having been convicted of petit theft, grand theft, ․ burglary, or robbery and having served a term therefor in any penal institution or having been imprisoned therein as a condition of probation for such offense, is subsequently convicted of 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.”.  FN1. All statutory references are to the Penal Code unless otherwise specified.Penal Code section 666 provides as follows:“Every person who, having been convicted of petit theft, grand theft, ․ burglary, or robbery and having served a term therefor in any penal institution or having been imprisoned therein as a condition of probation for such offense, is subsequently convicted of 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.”

2.   Section 667.5, subdivision (b) provides in part:“[W]here the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony;  ․”

3.   The information references a single specific robbery conviction which occurred on July 27, 1976 in support of the section 667.5 enhancement.   The allegations with respect to section 666 do not specify the robbery on which the district attorney was relying.   The probation report reflects that in addition to the 1976 conviction, Brunn was convicted of first degree burglary and “armed robberies” in January 1979 and served a prison term.   Relying on this reference, the Attorney General argues that Brunn's sentence involves no dual use of facts because we must assume the trial court utilized the 1979 robbery conviction to support the section 666 charges and only used the 1976 conviction as the basis for the enhancement.The problem with the Attorney General's argument is that Brunn's conviction is based on his guilty plea to an information which specifies a single prior robbery conviction.   There is nothing in the record to suggest that Brunn's plea constitutes an admission he had suffered more than one prior robbery conviction or even that the trial judge was aware of and relying on the 1979 conviction and prison term.   Under these circumstances, a silent record is an insufficient foundation on which to base imposition of the enhancement.  (Cf. In re Sutherland (1972) 6 Cal.3d 666, 671, 100 Cal.Rptr. 129, 493 P.2d 857;  People v. Brown (1971) 18 Cal.App.3d 1052, 1054–1055, 96 Cal.Rptr. 476.)

WIENER, Associate Justice.

KREMER, P.J., and WORK, J., concur.