People v. Rodriguez

California Court of Appeal Dec 8, 1988 No. B034336Published

Before: Abbe

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Holding. A single prior conviction and prison term may be used both to elevate a petit theft to a felony under Penal Code section 666 and to enhance the sentence under Penal Code section 667.5, subdivision (b). Penal Code section 654 does not prohibit this dual use of facts.

Issues

Whether a single prior conviction and prison term can be used to both upgrade petit theft to a felony and enhance the sentence under section 667.5, subdivision (b).
Whether Penal Code section 654 prohibits the dual use of a prior conviction and prison term for both sentence elevation and enhancement.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“The issue presented is whether a single conviction and single period of incarceration for such conviction may be used both to upgrade petit theft from a misdemeanor to a felony under section 666 and to enhance the sentence under section 667.5”

“Section 654 applies to an “act or omission,” i.e., criminal conduct or neglect. Both sections 666 and 667.5 apply to facts, not acts; they relate to the status of the recidivist offender engaging in criminal conduct, not to the conduct itself.”

“We therefore find the Legislature intended to permit a single qualifying conviction and sentence to be used both to make petit theft a felony and to enhance any prison term therefor for the prior prison term.”

Opinion

ABBE, J.

The People appeal an order striking the prior enhancement term (Pen. Code, § 1238, subd. (a)(6) and (10).)

The issue presented is whether a single conviction and single period of incarceration for such conviction may be used both to upgrade petit theft from a misdemeanor to a felony under section 666 and to enhance the sentence under section 667.5, subdivision (b). We hold this is proper.

Respondent pled guilty to a 1987 petty theft (§ 484) and admitted he suffered a previous conviction for robbery in 1983 for which he served a separate term in prison. Upon sentencing, the court struck the one-year enhancement term on the ground that to impose the term would be an improper dual use of facts. The court erred. There is no prohibition on the dual use of such facts.

Penal Code section 666 provides in pertinent part: “Every person, who having been convicted of. . . robbery and having served a term therefor in any penal institution ... is subsequently convicted of petit theft, then the person ... is punishable by imprisonment ... in the state prison.”

Penal Code section 667.5 states in pertinent part: “Enhancement of prison terms for new offenses because of prior prison terms shall be imposed as

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follows: [H]....................[11] (b) • • • where the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony . . . .”

Penal Code section 654 provides in pertinent part as follows: “An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions but in no case can it be punished under more than one. . . .” Respondent argues this section prohibits the use of appellant’s robbery conviction and imprisonment therefor both to upgrade a petit theft to a felony under section 666 and to enhance the felony sentence by one year under section 667.5. We disagree.

People v. Rodriguez

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ABBE, J.

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