People v. Benson4/16/1997
California Court of Appeals
B099330
54 Cal.App.4th 282, 62 Cal.Rptr.2d 690, 1997.ca.4
April 16, 1997
THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
RUSSELL DONALD BENSON, DEFENDANT AND APPELLANT.
APPEAL from a judgment of the Superior Court of Los Angeles County. Super. Ct. No. MA 009825. Albert D. Matthews, Judge.
Counsel Modified April 22, 1997. Review Granted July 23, 1997 (S061678),
Russell S. Babcock, 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, and Pamela C. Hamanaka, Ellen Birnbaum Kehr, Deputy Attorneys General, for Plaintiff and Respondent.
Baron, J. We concur: Epstein, Acting P.j., Aranda, J.*
The opinion of the court was delivered by: Baron
INTRODUCTION
Appellant, Russell Donald Benson, was convicted by a jury of petty theft with a prior (Pen. Code, § 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 a 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, 917 P.2d 628, footnote 13.
For the reasons explained below, we remand the case for resentencing pursuant to Romero and in all other respects affirm the judgment.
PROCEDURAL AND FACTUAL SUMMARY
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, 217, 12022, subd. (b), 12022.7). 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. 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 in Lancaster. At sentencing, the trial court denied appellant's motion to strike his priors and refused to reduce the petty theft conviction to a misdemeanor.
Discussion
I.
The Waiver/Forfeiture Rules on Appeal
One of the primary issues presented in this ca
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