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People v. Benson4/16/1997
question of substantial right" it warrants appellate review. (See, e.g., People v. Superior Court (John D.) (1979) 95 Cal. App. 3d 380, 387, 157 Cal. Rptr. 157.)
II.
The Scope of Burglary in Section 666
Petty theft may be punished as either a misdemeanor or an infraction "where the value of the . . . property taken . . . does not exceed fifty dollars ($50) . . . provided that the person charged with the offense has no other theft or theft-related conviction." ( § 490.1, subd. (a).) Petty theft may be punished as a felony and consequently trigger a Three Strikes penalty if the defendant is convicted of petty theft and "[has previously] been convicted of petit theft, grand theft, auto theft . . ., burglary,[ ] carjacking, robbery, or a felony violation of Section 496 [receiving stolen property] and . . . served a term therefor in any penal institution . . . ." ( § 666; People v. Terry (1996) 47 Cal. App. 4th 329, 332; People v. Stevens, supra, 48 Cal. App. 4th at p. 987.)
Appellant contends "the purpose of Penal Code section 666 is to provide more severe punishment for repeat offenders whose prior convictions are theft-related" and since his 1980 residential burglary conviction was not a theft-related burglary it should not have been used to elevate his petty theft crime to a felony. Although we have been cited to no case which has discussed this precise issue, we observe that a number of courts in the process of analyzing other issues have taken it for granted that the prior convictions referred to in the crime of "petty theft with a prior" are all theft-related priors. For example, in the case of People v. Ancira (1985) 164 Cal. App. 3d 378, 381, 210 Cal. Rptr. 527, the court stated: "The focus of section 666 is on theft-related priors; it is irrelevant whether the priors are felonies or misdemeanors. The apparent intent of the statute is to provide extra punishment for recidivist thieves, rather than ex-felons who commit petty theft. Thus, only a prior theft-related conviction, and not necessarily a prior felony conviction, is a component of a section 666 violation." (Emphasis added.)
Another example is People v. Bouzas (1991) 53 Cal. 3d 467, 279 Cal. Rptr. 847, 807 P.2d 1076, in which the court reviewed the history of section 666 beginning with its enactment in 1872 to determine whether it is a sentence-enhancing statute or a substantive offense statute. The court found that "until 1976, section 666 addressed only misdemeanor theft-related prior convictions resulting in incarceration. It made a current conviction for 'any crime' punishable as either a misdemeanor or a felony, if the defendant had been earlier convicted of and served time for petty larceny or petty theft. In that year, however, the Legislature rewrote section 666 and merged it with former section 667. Former section 667 was also originally enacted in 1872, and before its merger with section 666 made a current conviction for 'petty theft' punishable as either a misdemeanor or a felony, if the defendant had been earlier convicted and served time for 'any felony.' As noted above, present section 666 combines the two former sections and provides that a defendant who has been convicted of and imprisoned for enumerated theft-related crimes (certain misdemeanors and felonies) and who is subsequently convicted of petty theft 'is punishable by imprisonment in the county jail not exceeding one year, or in the state prison.'" ( People v. Bouzas, (supra) , 53 Cal. 3d at p. 471, emphasis added.)
Similar language was used in Miranda v. Superior Court (1995) 38 Cal. App. 4th 902, 45 Cal. Rptr. 2d 498, a case in which the issue was whether a Three Strike's prior had to be pled and prov
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