People v. Bury

[1875]

Opinion

HOLLENHORST, J.

Defendant Larry W. Bury appeals from the sentence imposed pursuant to his conviction for petty theft with a prior, alleging several errors in relation to the sentencing. We affirm.

I. Procedural History

In an amended information filed March 22,1995, by the District Attorney of Riverside County, defendant was charged with petty theft with a prior conviction (Pen. Code, § 666).

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Three prior offenses were alleged: robbery in 1975 (§ 211); possession of controlled substances in 1981 (Health & Saf. Code, § 11377); and petty theft with a prior in 1990 (§666). It was also alleged that for each of these three prior offenses, defendant did not remain free of prison custody, and committed another crime resulting in a felony conviction during, a period of five years, within the meaning of section 667.5, subdivision (b). Three special prior offenses were also alleged: forcible rape in 1980 (§ 261, subd. (2)); forcible oral copulation in 1980 (§ 288a); and robbery in 1975 (§ 211). It was also alleged that each of the three special prior offenses were serious and violent felonies within the meaning of sections 667, subdivisions (c) and (e) and 1170.12, subdivision (c).

A jury found defendant guilty of petty theft and, in a separate proceeding, found that all allegations of prior convictions were true. The court denied motions to strike the prior convictions for forcible rape and forcible oral copulation and to reduce the section 666 violation to a misdemeanor. Defendant was sentenced to 28 years to life.

II.-VI.

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VII. Application of the Three Strikes Law to Petty Theft With a Prior

The three strikes law only applies if the current offense is a felony and the defendant has prior violent or serious felony convictions. (§ 667, subds. (b) & (c).) California defines “felony” and “misdemeanor” in terms of the prison sentence imposed. “Section 16 classifies ‘crimes and public offenses’ as felonies, misdemeanors and infractions. A felony is a crime punishable