People v. Perry

SCHOTTKY, J. The People of the State of California appeal from an order of the superior court dismissing an information charging Donald Joseph Perry with petit theft with prior conviction of petit theft.

The basis of the court’s ruling was that it had no jurisdiction for petit larceny may not be considered so as to sustain a prosecution under section 666 of the Penal Code.

The section provides:

“Every person who, having been convicted of petit larceny or petit theft and having served a term therefor in any penal institution or having been imprisoned therein as a condition of probation for such offense, commits any crime after such conviction is punishable therefor as follows: ". . . . . . . . . . . .

“3. If the subsequent conviction is for petit theft, then the person convicted of such subsequent offense is punishable [203]by imprisonment in the county jail not exceeding one year, or in the state prison not exceeding five years.”

The information filed in this case reads in part: “Donald Joseph Perry, before the commission of the offense herein-above set forth was convicted of petty theft, Las Vegas, State of Nevada, in 1956.”

The sole question presented on this appeal is whether or not a prior petit theft conviction in a foreign state is to be considered in determining whether or not section 666 of the Penal Code is applicable.

We have concluded that the trial court erred in ordering that the information be dismissed. In the trial court’s opinion a prior foreign offense does not constitute a “prior” within the purview of section 666. The court reached this conclusion by reading part of section 668 of the Penal Code into section 666. Section 668 of the Penal Code reads as follows: “Every person who has been convicted in any other state, government, country, or jurisdiction of an offense for which, if committed within this State, such person could have been punished under the laws of this State by imprisonment in a state prison, is punishable for any subsequent crime committed within this State in the manner prescribed in section [s] 644, 666, and 667, and to the same extent as if such prior conviction had taken place in a court of this State.”

We think it is clear that section 668 of the Penal Code applies only to prior felony convictions. Obviously, it would not apply to petit theft which is a misdemeanor. Nor is there anything in that section which directs or indicates that it is to be read into section 666 as was done by the trial court in this case. In fact, the language employed indicates that this section is completely separate and distinct from section 666. Indeed, a completely contrary result from that reached by the trial court is dictated by the underlying purpose of the increased penalty provision, by the pattern of all similar law, and in order to avoid mischief and an absurd consequence.