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People v. Benson4/16/1997
s on the holdings in People v. Jones (1993) 5 Cal. 4th 1142, 857 P.2d 1163, and People v. Prather (1990) 50 Cal. 3d 428, 439, 267 Cal. Rptr. 605, 787 P.2d 1012, and the double jeopardy clauses of the state and federal Constitutions to support this contention. The same arguments were made in People v. White Eagle (1996) 48 Cal. App. 4th 1511, a case in which a defendant's robbery conviction was used to convert his petty theft offense to a felony under section 666 and to invoke the second strike punishment provisions of section 667, subdivision (e)(1). We reject appellant's arguments for the reasons set forth in People v. White Eagle, supra, 48 Cal. App. 4th at pages 1516-1520, with which we agree.
In White Eagle, the court quickly disposed of the appellant's claim that "the use of his prior conviction to impose multiple punishment violates double jeopardy . . . ." (48 Cal. App. 4th at p. 1519.) The court pointed out the "most obvious flaw" in that argument. The double jeopardy clause of the Fifth Amendment "'protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishment for the same offense.'" ( People v. White Eagle, supra, 48 Cal. App. 4th at pp. 1519-1520, citing North Carolina v. Pearce (1969) 395 U.S. 711, 717, 23 L. Ed. 2d 656, 89 S. Ct. 2072.) Neither the defendant in White Eagle nor the appellant herein is being punished for the crimes he previously committed. Each "is being punished under the sentencing provisions of section 667, subdivision (e) for the theft he committed in 1994." (48 Cal. App. 4th at p. 1520.) Like White Eagle, appellant's 1994 offense is made a felony under section 666 as a result of his having suffered the 1980 burglary conviction, but the 1994 petit theft and the 1980 burglary are two distinct offenses. (48 Cal. App. 4th at p. 1520.)
The court in White Eagle also held that use of a prior felony to elevate misdemeanor theft to a felony and for punishment under the Three Strikes provisions was not precluded by the Jones and Prather cases. It reasoned that "unlike the sentencing provisions at issue in Jones and Prather, section 666 and section 667, subdivision (e) are not enhancements. Subdivision (e) of section 667 provides for an alternate sentencing scheme when the defendant has a prior serious or violent felony conviction; it is not an enhancement. [Citations.] While section 666 has been characterized as a 'sentence-enhancing statute' (see People v. Bouzas (1991) 53 Cal. 3d 467, 479 [279 Cal. Rptr. 847, 807 P.2d 1076]), in light of the definition of the term 'enhancement,' section 666 is more precisely a statute which gives the court discretion to treat the offense as either a misdemeanor or a felony for the purpose of punishment. [Citation.]" ( People v. White Eagle, supra, 48 Cal. App. 4th at pp. 1517-1518.)
This result in White Eagle is supported by the holding in People v. Coronado, supra, 12 Cal. 4th 145. In Coronado, the defendant was convicted of driving under the influence (Veh. Code, § 23152) which is ordinarily punished as a misdemeanor. However, the defendant admitted three prior driving under the influence convictions which made his crime punishable as a felony or a misdemeanor. (Veh. Code, § 23175, subd. (a).) The defendant also admitted three prior state prison terms within the meaning of section 667.5, subdivision (b). One of the defendant's prior state prison terms was served for one of the prior DUI convictions used to elevate his current DUI offense to a felony. The defendant was sentenced to state prison for the high term of three years for felony driving under the influence plus three one-year enhance
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