PEOPLE v. GAITHER

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

The PEOPLE, Plaintiff and Respondent, v. Michael Wayne GAITHER, Defendant and Appellant.

No. B096677.

Decided: June 27, 1996

Steve Pell, Ventura, under appointment by the Court of Appeal, 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, Jaime Fuster, Kyle S. Brodie and Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.

Michael Wayne Gaither appeals from a judgment entered (1) after he pled guilty to stealing a boat worth over $150,000 (Pen.Code, §§ 487h, subd. (a), 12022.6, subd. (b)) and admitted prior convictions for grand theft of a boat and grand theft of a firearm, and (2) following a court trial in which the court determined that appellant's prior conviction for grand theft of a firearm constituted a “prior felony conviction” within the meaning of Penal Code section 667, subdivisions (d) and (e)(1).1  Appellant was sentenced to six years in state prison, the agreed term in the event that the trial court determined appellant's prior felony conviction for grand theft of a firearm constituted a true and valid “strike” against appellant within the meaning of the three strikes law.

Appellant contends that his prior conviction for “grand theft firearm” does not constitute a “prior felony conviction” within the meaning of section 667, subdivision (e)(1), because grand theft of a firearm is not a “serious felony” within the meaning of section 1192.7, subdivision (c)(23).   Alternatively, appellant argues that his prior conviction for grand theft of a firearm cannot be used as a “strike” against him because sentencing for that prior conviction was stayed on the basis of section 654.   Neither contention has merit.   We affirm.

FACTS

Appellant pled guilty to stealing a 52–foot ketch-rigged sailing yacht worth over $150,000.  (§§ 487h, subd. (a), 12022.6, subd. (b).)  He also admitted prior convictions for (1) grand theft of a boat valued at over $150,000, for which appellant served a term in prison, and (2) grand theft of a firearm pursuant to then section 487, subdivision (3),2 for which appellant's sentence was stayed based on the prohibition against multiple punishment for a single course of conduct provided in section 654.  (Neal v. State of California (1960) 55 Cal.2d 11, 9 Cal.Rptr. 607, 357 P.2d 839, cert. den. 365 U.S. 823, 81 S.Ct. 708, 5 L.Ed.2d 700.)

Thereafter, a court trial was held to determine whether appellant's prior conviction for grand theft of a firearm constituted a prior felony conviction within the meaning of section 667, subdivision (e)(1), requiring that appellant's sentence be doubled.   Appellant agreed to a sentence of six years in prison if the trial court answered the foregoing question in the affirmative.3  If not, then the court committed to sentencing appellant to five years in prison.   Finding that appellant's prior conviction for grand theft of a firearm constituted a valid “strike” against appellant, the trial court sentenced appellant to six years in state prison.4

DISCUSSION

First, we address appellant's contention that because grand theft of a firearm does not qualify as a “serious felony” within the meaning of section 1192.7, subdivision (c)(23), appellant's prior conviction for that offense cannot count as a “strike” against him pursuant to section 667, subdivision (e)(1).

Section 1192.7, subdivision (c)(23) makes the personal use of a dangerous or deadly weapon during the commission of a felony a “serious felony.”   Appellant contends that because the firearm previously stolen by him “was simply a part of the salvage from the boat” that he stole and was not “used” by him at any time during his theft of the boat, he never committed a serious felony within the meaning of section 1192.7, subdivision (c)(23).

 The exact circumstances pursuant to which appellant previously stole the boat and the gun are not ascertainable from the record before us.   Consequently, there is an insufficient basis for determining whether appellant “personally used a dangerous or deadly weapon” during his commission of a felony within the meaning of section 1192.7, subdivision (c)(23).  (See People v. Merriam (1967) 66 Cal.2d 390, 396–397, 58 Cal.Rptr. 1, 426 P.2d 161 [matters not actually contained in the record cannot be considered by the reviewing court merely because they are suggested by counsel in briefs filed with the court].)   We need not decide this issue, however, because appellant's admitted grand theft of a firearm constituted a “serious felony” within the meaning of section 1192.7, subdivision (c)(26), regardless.

Section 1192.7, subdivision (c)(26) lists as a serious felony “grand theft involving a firearm.”  (Italics added.)   Although there are no reported decisions directly addressing whether grand theft of a firearm—the crime admitted by appellant in this case—constitutes “grand theft involving a firearm” within the meaning of the section 1192.7, subdivision (c)(26), the legislative history to this section makes clear that the Legislature did, indeed, intend for grand theft of a firearm to constitute a “serious” felony within the meaning of section 1192.7, subdivision (c)(26).  (Legis.Counsel's Dig., Assem.Bill No. 566, 8 Stats.   1989 (Reg.Sess.) p. 3215 [“This bill would include within the list of serious felonies the grand theft of a firearm․”  (Italics added.) ].)

Construing section 1192.7, subdivision (c)(26) to include grand theft of a firearm among the list of serious felonies is also consistent with the Legislature's choice of the broad term “involving” in that section.   Had the Legislature intended to limit the category of serious felonies to those situations where the defendant actually uses a firearm during the commission of a grand theft, it could have easily done so by listing as a serious felony “grand theft using a firearm.”   The Legislature, instead, appears to have contemplated a broader class of crimes, however, when it listed “grand theft involving a firearm” among the list of serious felonies.   We, therefore, conclude that grand theft of a firearm constitutes a serious felony within the meaning of section 1192.7, subdivision (c)(26).   Based upon the foregoing, appellant's prior conviction for grand theft of a firearm properly counted as a “strike” against appellant under section 667, subdivision (e)(1).

 Appellant next contends that because sentencing for his prior conviction for grand theft of a firearm was stayed on the basis of section 654, that prior conviction cannot form the basis for a “strike” against him pursuant to section 667, subdivision (e)(1).   We disagree.  Section 667, subdivision (d)(1)(B) plainly states that the “stay of execution of sentence” shall not affect the determination that a prior conviction is a prior felony for purposes of the three strikes law.  (See People v. Pearson (1986) 42 Cal.3d 351, 363, 228 Cal.Rptr. 509, 721 P.2d 595 [recognizing that, notwithstanding that section 654 generally precludes enhancement of a defendant's sentence based on a prior stayed conviction, nothing prevents the Legislature from expressly declaring that subsequent penal action may be based on convictions as to which sentencing has been stayed].)   Thus, the fact that sentencing for appellant's prior conviction for grand theft of a firearm was stayed does not preclude that prior conviction from counting as a “strike” against appellant under section 667, subdivision (e)(1).

The judgment is affirmed.

FOOTNOTES

1.   All further statutory references are to the Penal Code.

2.   At the time, section 487, subdivision (3) provided that “grand theft” is committed when the property taken is a firearm.   This exact language is now codified in section 487, subdivision (d).

3.   Appellant acknowledged that, assuming the “strike” against him for his prior conviction for grand theft of a firearm were proven to be valid and true, the maximum term to which he could be sentenced was nine years.

4.   Doubling, pursuant to section 667, subdivision (e)(1), the middle term of two years for a violation of section 487h, subdivision (a), the court then enhanced appellant's four-year sentence by two years (to be served consecutively) pursuant to section 12022.6, subdivision (b), because the yacht stolen was worth over $150,000.   The court struck the one-year enhancement contemplated by section 667.5, subdivision (b) for appellant's prior prison term.

STEVEN J. STONE, Presiding Justice.

GILBERT and YEGAN, JJ., concur.

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