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People v. Benson4/16/1997
se 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." 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.) Appellant counters with the argument that "where 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. 'The 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 (123 L. Ed. 2d 508, 519, 113 S. Ct. 1770)].)' ( 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, 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.) 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
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