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Court of Appeal, Second District, Division 6, California.

The PEOPLE, Plaintiff and Respondent, v. Emiliano LUGO, Defendant and Appellant.

Crim. No. B037617.

Decided: November 29, 1989

Tim Quinn, Ventura, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Arnold O. Overoye, Acting Chief Asst. Atty. Gen., Edward T. Fogel, Jr., Sr. Asst. Atty. Gen., John R. Gorey, Supervising Deputy Atty. Gen., and Stephen M. Kaufman, Deputy Atty. Gen., for plaintiff and respondent.


Emiliano Lugo appeals his conviction for grand theft (count 2), claiming that during the instructional phase of the proceedings he was wrongfully coerced into stipulating to the value of the stolen property in order to avoid instructions requested by the prosecution on another related offense.   We reverse.


The information filed against appellant charged him with two counts of first degree burglary, and alleged that he had twice previously been convicted for residential burglary within the meaning of Penal Code section 667, subdivision (a).   Appellant pled not guilty to the charges, but admitted the prior serious felony convictions.   Following jury trial, the defense stipulated that the value of the property taken in count 2 exceeded $400, and the jury was so advised.

The record shows that on May 17, 1987, the residence of Ruben Jose Rivas, appellant's stepfather, was burglarized, and a television taken.   Appellant was arrested as the suspect.   During a recorded conversation with the police, appellant stated that the door to Rivas' residence could be forced open without using a key, and that he had sold the stolen television for $45.

On February 20, 1988, Rivas' residence again was burglarized and this time two television sets were taken.

Appellant again was arrested as the suspect, and again agreed to talk to the police after waiving his Miranda rights.   During this conversation, appellant denied any involvement in the burglary despite being told that on the day in question a witness had observed him place a television set in a car parked in Rivas' driveway.   The vehicle, which belonged to appellant's sister, was found abandoned the day after the burglary and contained one television set.   Appellant denied any knowledge of any property inside the vehicle when he had possession of it.   When told that his family had identified the television set found in the car, appellant responded by accusing his stepfather of instigating the entire incident to get back at him for burglarizing Rivas' house the first time.   The police noticed during the interview that the shoes appellant was wearing matched the type and size of a shoeprint found on a chair in the Rivas' bedroom located next to the window which the second burglar had used as the means of entry.

Appellant's defense was that his mother had given him permission to reside at Rivas' home when the alleged burglaries were committed.


Appellant claims that there is no evidence of the value of the stolen property in count 2 without defense counsel's stipulation that the value of the property taken exceeded $400, and that the stipulation is invalid as the product of coercion.   The trial judge ruled that, if appellant sought jury instructions on the lesser related offense of petty theft, then the prosecution would be entitled to instructions on the lesser related offense of petty theft with prior theft conviction, Penal Code section 666, which would place before the jury the evidence of appellant's prior convictions.1  According to appellant, this erroneous ruling forced defense counsel into withdrawing his request for petty theft instructions and stipulating to the property element of grand theft in order to avoid having the jury learn of appellant's priors.   Appellant further contends that the stipulation of property value is ineffective because it was made without his express waiver of his constitutional rights.   Finally, appellant claims that the prosecution's attempt to seek instructions on section 666 is tantamount to an informal request to amend the information during trial.

Appellant's latter two theories have no merit.

 The record indicates that appellant expressly consented in open court to counsel's stipulation.2  In light of this, he is precluded from directly contradicting that position on appeal by in effect claiming that he did not participate in his attorney's decision to stipulate.3

 We need not consider appellant's other point that the information was informally amended.   Since the jury was not instructed on the lesser related offense of petty theft with prior theft conviction (§ 666), the issue of any informal amendment of the information adding a section 666 charge is irrelevant.

Appellant's initial theory, that the stipulation to property value was improperly obtained as the result of the defense having to withdraw its request for petty theft instructions, does have merit.

 A conviction for a nonincluded offense implicates a defendant's due process right to notice.  (People v. Toro (1989) 47 Cal.3d 966, 973, 254 Cal.Rptr. 811, 766 P.2d 577.)   It is fundamental under due process principles that a defendant cannot be convicted of a charge unless he has received notice from the accusatory pleading that he may be called upon to defend against the charge.  (People v. Geiger (1984) 35 Cal.3d 510, 526, 199 Cal.Rptr. 45, 674 P.2d 1303;  People v. Wolcott (1983) 34 Cal.3d 92, 101, 192 Cal.Rptr. 748, 665 P.2d 520.)   Thus, where an offense is neither charged nor necessarily included in the alleged offense, the trial court lacks jurisdiction to convict defendant of the former offense.  (People v. Lohbauer (1981) 29 Cal.3d 364, 368–369, 173 Cal.Rptr. 453, 627 P.2d 183.)

 In this case, petty theft with a prior theft conviction, section 666, is not charged in the information, nor is it necessarily included in the offense of burglary.   The test in California of a necessarily included offense is that where an offense cannot be committed without committing another offense, the latter is a necessarily included offense.  (People v. West (1970) 3 Cal.3d 595, 612, 91 Cal.Rptr. 385, 477 P.2d 409.)   The elements of a section 459 burglary offense are:  (1) a person entered a structure and (2) at the time of entry, such person had the specific intent to steal and take away someone else's property with the intent to deprive the owner permanently of such property.  (CALJIC No. 14.50 (1988 rev.).)   The elements of a section 666 violation are:  (1) the commission of a petty theft (2) by one previously convicted of a petty theft of specified theft felony (3) for which prior conviction a term was served in any penal institution.  (People v. Bruno (1987) 191 Cal.App.3d 1102, 1105, 237 Cal.Rptr. 31.)   Obviously, one can commit a burglary without either committing petty theft or suffering incarceration for a prior theft conviction.   The crime of burglary is complete upon the mere entry of the structure if the requisite intent existed at the moment of entry.  (People v. Markus (1978) 82 Cal.App.3d 477, 481, 147 Cal.Rptr. 151.)

 Moreover, in California enhancement allegations are not considered part of the accusatory pleading for the purpose of defining lesser included offenses.  (People v. Wolcott, supra, 34 Cal.3d at 101, 192 Cal.Rptr. 748, 665 P.2d 520.)   Thus, appellant's being charged with two prior theft convictions for the purpose of sentence enhancement did not give him the required notice of a prosecution for violating section 666.

 We conclude that the record establishes that appellant could not have been convicted of the section 666 offense.   When a defendant pleads not guilty, the court lacks jurisdiction to convict him of an offense that is neither charged nor necessarily included in the alleged crime.  (People v. Thomas (1987) 43 Cal.3d 818, 823, 239 Cal.Rptr. 307, 740 P.2d 419.)   Consequently, the trial court's ruling that the prosecution was entitled to instructions on section 666 is erroneous.

 The court committed additional error in that, by reasoning that appellant's request for instructions on petty theft meant the People had a reciprocal right to instructions on violation of section 666, it improperly implied that there is some mutuality of right between the parties concerning requests for instructions on related offenses.   Such mutuality is not a prerequisite to the defense's right to related offense instructions.   (People v. Geiger, supra, 35 Cal.3d at 526–527, 199 Cal.Rptr. 45, 674 P.2d 1303.)   The decision to permit or preclude consideration by the trier of fact of a lesser related offense is a right accorded to the defendant, not the prosecution.  (People v. Toro, supra, 47 Cal.3d at 975, 254 Cal.Rptr. 811, 766 P.2d 577.)   Such right would be a hollow one if conditioned on the prosecutor's “right” to choose instructions on lesser related offenses different from and of greater severity than the lesser related offenses defendant decides to place before the jurors as options for them to consider.   (People v. Wright (1989) 209 Cal.App.3d 386, 396, 257 Cal.Rptr. 247 (dis. opn. of Johnson, J.).)

In this regard, we disagree with People v. Wright, supra, which holds that lesser related offense instructions for felony assault, requested by the prosecution and objected to by defendant, were properly given along with defense requested instructions for misdemeanor assault.   Although felony assault was not a charged offense, the appellate court held that the defendant was fully on notice that he could be convicted of felony assault by the evidence at the preliminary hearing, and therefore he had no cause for surprise or complaint when he opened the door for a felony assault conviction by selecting instructions for the lesser related offense of misdemeanor assault.  (209 Cal.App.3d at 393–394, 257 Cal.Rptr. 247.)

As the Wright dissent notes, the majority's opinion violates the right reposing in the defendant to decide which lesser related instructions are given by in effect holding that defendant's choice declares open season on all lesser related instructions supported by the evidence.  (209 Cal.App.3d at 395–396, 257 Cal.Rptr. 247.)   Moreover, we think Wright 's reasoning offends established due process principles.   Constructive notice has never been a substitution for actual notice of the charges against an accused.

Respondent's citation of People v. Bennett (1987) 188 Cal.App.3d 911, 233 Cal.Rptr. 729, for the proposition that if instructions are given on petty theft then the prosecution is entitled to present proof of petty theft with prior theft conviction, is unavailing.  Bennett concerned the issue of whether an offer to stipulate to a prior felony theft conviction in a case where a section 666 violation was charged in the accusatory pleading precluded proof of that prior before the jury.   Unlike our case, in Bennett there was no question of notice of the charges.

 Respondent's additional argument that defense counsel agreed to stipulate to property value only to permit the jury to convict him of the lesser related charge of grand theft, and not because he was precluded from requesting petty theft instructions, misstates the record.   The transcript of the trial proceedings demonstrates that defense counsel's stipulation to an element of grand theft directly resulted from the court's ruling that the defense's request for petty theft instructions would allow the prosecution the right to place before the jury the evidence of appellant's admitted prior convictions via the section 666 instruction.   A defendant's express or implied consent to have the trier of fact consider a nonincluded offense is an exception to the rule that a person cannot be convicted of an offense not charged against him by indictment or information.  (People v. Toro, supra, 47 Cal.3d at 973, 254 Cal.Rptr. 811, 766 P.2d 577.)   However, in this case, appellant's stipulation did not signify an express or implied consent to the giving of section 666 instructions, but instead was the means to avoid such instructions.   But for the trial court's ruling that the prosecution was entitled to prove appellant's priors if appellant requested petty theft instructions, the jury would have been given petty theft instructions and appellant would not have stipulated to establish an element of grand theft.

Appellant contends that the double jeopardy doctrine prohibits our remanding this case to the superior court for retrial, claiming that our ruling reverses count 2 for insufficiency of the evidence.

 The double jeopardy clause of the United States Constitution forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.   (Burks v. United States (1978) 437 U.S. 1, 11, 98 S.Ct. 2141, 2147, 57 L.Ed.2d 1.)   The clause prohibits retrial resulting from evidentiary insufficiency;  it does not prohibit the retrial of a defendant whose conviction is set aside because of an error in the trial proceedings leading to conviction.  (Id., at p. 14, 98 S.Ct. at p. 2149;  Greene v. Massey (1978) 437 U.S. 19, 24, 98 S.Ct. 2151, 2154, 57 L.Ed.2d 15 [applying Burks to state prosecutions].)  In such latter cases, retrial supports the accused's right to a fair adjudication of his guilt free from error, as well as avoiding the high price society would have to pay were every accused granted immunity from punishment because of any trial error.  (Burks, supra, 437 U.S. at p. 15, 98 S.Ct. at p. 2149.)

 Contrary to appellant's contention, our opinion is based on the trial error of forcing the defense to stipulate to property value for purposes of jury instruction.   We make no ruling on the state of the evidence.   Consequently, retrial in this case is not barred.  (Burks v. United States, supra, 437 U.S. 1, 98 S.Ct. 2141.) 4

The judgment on count 2 is reversed and the count 2 cause is remanded to the trial court for a new trial.   The remainder of the judgment is affirmed.


1.   “THE COURT:  What is your position with respect to the position that if you were going to seek instructions on petty theft, the People having alleged there are prior offenses in this case, they would have the right to prove the priors so a petty with a prior can be shown?  [¶] MR. SCHWARTZ [defense counsel]:  ․ [¶] My gut reaction is they would then be accomplishing indirectly what they can't do directly, i.e., the fact the jury would now find out about any prior convictions of Mr. Lugo which they don't know about right now.  [¶] ․ [¶] THE COURT:  ․ [¶] If the law is that the People are entitled to show the prior with time, then it is just unfair to put the People in the position of asking for a lesser-included but stripping them of the right to present the case as if that lesser were indeed a charged offense.  [¶] That's just not fair.  [¶] MR. SCHWARTZ:  Obviously I would not request anything that's not the law.  [¶] If the Court is of the opinion the People are entitled to have the jury so instructed, we would not be—we would withdraw our request to have them instructed with respect to petty theft.  [¶] THE COURT:  I think before the People rest, they have a right to know what the state of the Court's ruling is or would be so we will take a quick recess and find out.  [¶] ․  [¶] THE COURT:  Now we're back in session in the matter of People versus Lugo.  [¶] ․  [¶] The issue has arisen on a defense suggestion that it may be seeking a lesser-related or—included offense of petty theft to which the People have rejoined, if that's the case, it's going to be petty with a prior because of the fact that it so qualifies.  [¶] At bench, there had been a conference in which the Court had indicated its impression that the state of the law was that the defendant could stipulate his way around presenting to the jury the question of the prior․  [¶] Second District, People versus Bennett, 188 Cal.App.3d 911 at 914 says that the Court is to permit the People at worst to present the fact of a stipulation that qualifies the ․ prior theft as a petty with a prior.  [¶] In that light, I had suggested I might go so far as to say a theft-related offense, prior conviction of a theft-related offense.  [¶] It is my understanding in that light defense does not wish that lesser-related instruction [of petty theft].  [¶] MR. SCHWARTZ:  Based on the Court's ruling, that is correct.  [¶] THE COURT:  That's why I made the ruling that way.  [¶] ․ it seems to me fairly evident at this point that the weight of authority is running towards [sic ] disclosure to the jury.  [¶] And frankly I can't say that particularly offends me.   So that would be my ruling.  [¶] ․  [¶] Are you requesting any lesser-related offenses as to Count 2?  [¶] MR. SCHWARTZ:  We are requesting a grand theft as to Counts 1 and 2, your Honor.  [¶] ․  [¶] MR. ROBERTS [prosecutor]:  Well, there's no proof of value as to Count 2.  [¶] THE COURT:  That's true.  [¶] MR. ROBERTS:  The defense is the one who's raising this bugaboo so it was incumbent upon them to show it is over $400.  [¶] We could probably get around that by stipulating to what was taken on the second occasion, February 20, was of a value exceeding $400.  [¶] ․  [¶] THE COURT:  The offense of grand theft is a lesser offense to the offense charged in Counts 1 and 2.   It is your request it be given with respect to each count?  [¶] MR. SCHWARTZ:  Yes, your Honor.  [¶] MR. ROBERTS:  Now what are we gonna do about value?  [¶] THE COURT:  ․  [¶] How do I find $400 worth of property as to Count 2?  [¶] MR. SCHWARTZ:  I don't know.  [¶] THE COURT:  If I don't, then I can't even instruct on it, can I?  [¶] In order for it to be a lesser-related offense, it has to have the elements of that offense we talked about and I can't play Let's Pretend.  [¶] ․  [¶] MR. ROBERTS:  I will renew my offer to stipulate the total value of the goods taken on this February 20th theft was in excess of $400.  [¶] ․  [¶] MR. SCHWARTZ:  I appreciate counsel stipulating but I'm trying to figure out why I have to be in the position to prove the elements of a lesser-included.  [¶] ․  [¶] Lesser-related.  [¶] ․  [¶] THE COURT:  I rule now there is insufficient evidence upon which this jury could be persuaded that the property taken in the theft of February 20 was of an amount in excess of $400.  [¶] MR. SCHWARTZ:  That being the case, I accept counsel's stipulation.”

2.   “THE COURT:  Here's the situation.   Your lawyer doesn't want you convicted of burglary.   You don't want to be convicted of burglary, if I understand what's going on here.  [¶] THE DEFENDANT:  (Nods head.)  [¶] THE COURT:  The district attorney ․ has charged you with the crime of burglary.  [¶] Within the crime of burglary, your attorney has a right to ask this Court to instruct the jury on any related offenses.   They are referred to as lesser-related offenses.  [¶] The lesser-related offenses with which we are dealing are theft.   Theft is of two kinds, grand theft and petty theft.  [¶] Grand theft requires that the theft be in an amount of excess of $400.   Petty theft is $400 and less.  [¶] We have earlier, at the request of your attorney, excluded petty theft because ․ the prosecution has urged—that in the event you want petty theft, that's fine, prosecution is more than happy to let you go on that theory but they will be able to prove you had a prior for which you served time in custody;  therefore, your attorney does not want petty theft pleaded or argued to the jury.  [¶] ․  [¶] Understanding that to be the case, your attorney says, Judge, I want this jury just to have the instructions on grand theft generally, leaving the $400 issue as one of the elements․  [¶] I cannot rewrite the law and say we will just pretend it is grand theft, and so I look at the evidence.  [¶] Well, there just in my estimation is not any evidence that says that property is of value greater than $400 and I won't take judicial notice of the fact that a portable TV and a little black-and-white are together worth more than $400.  [¶] ․  [¶] Then the prosecution says, well, I'll tell you what, we stipulate it is worth $400 and your attorney says that since I will not allow that generally to go to the jury he will then stipulate that it is more than $400 which makes that element of the offense.  [¶] Do you understand that, sir?  [¶] THE DEFENDANT:  Yes.  [¶] THE COURT:  You agree with your lawyer?  [¶] THE DEFENDANT:  Yes, sir.  [¶] THE COURT:  Takes care of that.”

3.   Assuming for argument sake appellant did not consent to the stipulation, the stipulation did not require his express waiver of his constitutional rights.   Unless a stipulation of fact destroys the accused's defense, it is not akin to a guilty plea or its equivalent, but constitutes the type of professional tactical decision which counsel must make.  (People v. McCoy (1974) 40 Cal.App.3d 854, 859, 115 Cal.Rptr. 559.)   Here, because counsel's stipulation had the effect of reducing appellant's potential punishment by indicating that appellant may have committed the lesser offense of grand theft instead of the greater offense of burglary, it was a tactical decision.  (See People v. Ratliff (1986) 41 Cal.3d 675, 697, 224 Cal.Rptr. 705, 715 P.2d 665.)

4.   Appellant, moreover, was charged in count 2 with first degree burglary, not grand theft.   Since property value is not an element of burglary, the lack of evidence as to the value of the property taken in count 2 (resulting in the stipulation) does not prohibit retrial.   Although the conviction of a related offense normally signifies acquittal of the charged offense (People v. Serrato (1973) 9 Cal.3d 753, 762, 109 Cal.Rptr. 65, 512 P.2d 289), we cannot say based on the record before us that no substantial evidence supports a conviction for burglary.   In this regard, retrial is not for the purpose of providing the prosecution with an opportunity to garner more evidence against appellant.  (See Burks v. United States, supra, 437 U.S. at p. 11, 98 S.Ct. at p. 2147.)

STEVEN J. STONE, Presiding Judge.

GILBERT and ABBE, JJ., concur.

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