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People v. Benson4/16/1997
ne of nocitur a sociis puts the proverbial "cart before the horse" which the rules preclude. Thus, we begin with the question of whether the word "burglary" has a plain meaning. Since its enactment in 1872 the crime of burglary has been amended many times over the years. Each amendment has expanded the list of structures to be protected, but one phrase has remained constant. The language "Every person who enters . . . with intent to commit grand or petit larceny or any felony is guilty of burglary" has never changed. While the word "burglary" may lead a layperson to envision a thief breaking into a structure with the intent to steal property and thus appear more like the other theft-related prior convictions contained in section 666, its legal meaning has never been in doubt. For 125 years, burglary has included in its definition the entering of a structure with the intent to commit "any felony." It has never been limited to the intent to commit a "theft-related" crime. This dual definition of burglary is so clear and unambiguous and has become so firmly established in our legal lexicon that we cannot use the doctrine of noscitur a sociis to reach a different Conclusion. If the Legislature intended to restrict the crime of burglary in section 666 to theft-related burglaries, it would have done so. It did not.
The Legislature has not been without opportunities to impose such a restriction. Our review of a century of amendments to section 666 reveals a movement away from increased punishment for petty thieves who have committed "any felony" toward punishing petty thieves who have committed theft-related misdemeanors and felonies, but the Legislature has continued to use the term "burglary" without any qualification. If the Legislature had intended to restrict the statute, it has had numerous occasions over the years to insert the phrase "with intent to commit grand or petit larceny" in section 666. It has not done so. Thus, we are brought full circle to the basic principle that "the Legislature is presumed to have meant what it said, and the plain meaning of the language governs." ( People v. Coronado, supra, 12 Cal. 4th at p. 151, internal quotation marks & citation omitted.) "'This court has no power to rewrite the statute so as to make it conform to a presumed intention which is not expressed. . . .'" ( People v. Hill (1995) 37 Cal. App. 4th 220, 225.)
Moreover, there are two important aspects of the crime of burglary that are so similar to the crime of theft that they provide a reasonable explanation as to why the Legislature has not seen fit to restrict burglaries in section 666 to only those which are theft-related. A burglary is an entry which invades another's possessory right in a building and it can only be committed by a person who has no right to be in the building. ( People v. Gauze (1975) 15 Cal. 3d 709, 714, 125 Cal. Rptr. 773, 542 P.2d 1365; People v. Salemme (1992) 2 Cal. App. 4th 775, 781.) Theft is also an invasion of a person's possessory rights to property and can only be committed by a person who has no right to possess the property. Thus, the interference with the possessory rights of another is a common thread which binds burglary and theft whether or not the burglary was committed with theft in mind. That being so, we conclude that to give burglary an unrestricted definition does not lead to an absurd result.
III.
Dual Use of Burglary Conviction
Appellant contends that if we conclude, as we have, that his prior burglary conviction may be used to elevate his crime of petty theft to a felony, then statutory and constitutional provisions against dual use of facts to increase punishment preclude its use as a "strike." Appellant relie
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