Monder Law Group - News
Out of State Conviction Being Used to Enhance Your San Diego Criminal Exposure
Many times the prosecution will say that a case is priorable and will enhance your criminal exposure if you proceed to trial; however, this is not always the case and it is just a way to prevent you from moving forward. In a more serious felony matter, you must always consider:
- Whether an out of state conviction is eligible under the three strikes law
- Difference in definition of crimes between states; and
- Any remedy of not being told prior crime could be used against them
As for the first prong, an out of state conviction is eligible for sentencing in California if committed in California, it would be punishable by imprisonment in the state prison and includes all of the elements of the particular felony as defined in section 1192.7 [subdivision] (c). People v. Warner (2006) 39 Cal.4th 548, 552–553, 47 Cal.Rptr.3d 1, 139 P.3d 475; People v. Sample (2011) 200 Cal.App.4th 1253, 1261 [133 Cal.Rptr.3d 421, 427]. For example, burglary committed in the first degree in California is eligible to be a strike. However, it is not a strike if committed in another state where the particular felony does not include all the same elements as the strike offense in California. This may be a bit confusing but will be discussed further in the next prong.
As for the second prong, if the definition of the crime from out of state conviction is not substantially the same to the crime that qualifies under the three-strikes law here in California, then essentially it cannot be used against you as a strike in California.
To qualify as a prior conviction under the three strikes law, a conviction in another state must meet all the elements as specified in a felony under Penal Code Section 1170.12 [subdivision] (b)(2). The record of conviction will provide all conduct that satisfies all the elements of the California serious offense. This means the court will only consider the change of plea and the penal code section you plead to in the foreign jurisdiction to determine whether it meets the California serious offense.
For example a change of plea for burglary under Texas Statute Section 30.02 requires a person to commit this offense without consent of owner if:
- Person enters habitation, or a building not open to the public with intent to commit felony, theft, or an assault; or
In California, burglary in the first degree is a strike offense under California Penal Code Section 459 and requires a person to commit this offense if:
- Defendant entered building and when he entered building intended to commit theft or felony inside.
The difference between these two statutes is a minor detail but a very important one that can make the difference of spending many years of your life in prison. What prevents the Texas Statute Section 30.02 from being considered a specified felony under California Penal Code Section 1170.12 [subdivision] (b)(2) is the difference in the definition of theft in both states.
In Texas, having committed burglary can be either in the first degree or second degree. Committing a burglary in a building other than a habitation is a state jail felony. Furthermore, felony is in the second degree if committed in a habitation. In Texas, burglary in the second degree is less serious than if committed in the first degree. The offense of burglary in a habitation can be committed in the first degree if person entered habitation with intent to commit felony other than theft.
A theft offense is defined under Texas Statute Section 31.03 and requires a person commit an offense if he unlawfully appropriates property with intent to deprive the owner of the property. To ‘appropriate’ under Texas Statute Section 31.01(4) means to: “(a) to bring about a transfer or purported transfer of title to or other non-possessory interest in property, whether to the actor or another; or (b) to acquire or otherwise exercise control over property other than real property.” To ‘deprive’ under Texas Statute Section 31.01(2) means to: “(a) to withhold property from the owner permanently or for so extended a period of time that a major portion of the value or enjoyment of the property is lost to the owner; or (b) to restore property only upon payment of reward or other compensation; or (c) to dispose of property in a manner that makes recovery of the property by the owner unlikely.”
In California, ‘theft’ for purposes of a burglary offense, requires the intent to permanently deprive a person of property. (See People v. Ortega (1998) 19 Cal.4th 686, 693 [80 Cal.Rptr.2d 489, 968 P.2d 48] [“[t]heft requires an element-the specific intent to permanently deprive a person of property” (italics omitted)].)
The court concluded in People v. Marquez that “[t]he intent to acquire, or deprive an owner of, ‘the major portion of the economic value or benefit’ of his or her property is not equivalent to the intent to ‘permanently’ deprive an owner of his or her property. (People v. Marquez, supra, 16 Cal.App.4th at p. 123, italics omitted.) A person who intends only to temporarily deprive an owner of property, albeit while acquiring or depriving the owner of the main value of the property, does not intend to permanently deprive the owner of the property and therefore does not have the intent to commit theft in California.
Even though such intent would constitute the intent to commit the crime of theft under Texas law but never under any circumstances can this be construed under California law especially for the purposes of designating the offense as a serious felony under Penal Code Section 1192.7 [subdivision] (c)(18).
Lastly, the defendant must be told that the conviction could be used against him in the future. We must look at the record of conviction or change of plea to see if this case can be brought up again against the defendant in the future. If the case has no collateral consequences such as when a guilty plea can be withdrawn and the case is dismissed at a later date, then it is less likely the defendant would be told that the conviction could be used against them in the future.
In California, when the court accepts a guilty plea, the court must inform the defendant of direct consequences of a guilty plea. Torrey v. Estelle, 842 F.2d 234, 235 (9th Cir.1988). “The distinction between a direct and collateral consequence of a plea turns on whether the result represents a definite, immediate and largely automatic effect on the range of the defendant’s punishment.” Id. at 236. In the Ninth Circuit, the possibility that a defendant will be convicted of another offense in the future and receive an enhanced sentence based on the current conviction is not a direct consequence of a guilty plea. United States v. Brownlie, 915 F.2d 527, 528 (9th Cir.1990) (rejecting defendant’s challenge to voluntariness of guilty plea). Because the state courts in Petitioner’s previous cases had no obligation to inform Petitioner of possible enhancements based on future convictions, the trial court in Petitioner’s current case was free to use the prior convictions to enhance Petitioner’s current sentence without violating any term of the plea agreements upon which the prior convictions were based. See Torrey, 842 F.2d at 235; Brownlie, 915 F.2d at 528.
Ultimately, if there was a dismissal or diversion offer where there does not exist any commitment to any facility whose function is rehabilitative diversion from a state prison, then it is unlikely that the defendant would ever be made aware that the prior out of state conviction would be used against them especially as a strike in a San Diego criminal case.
If you have any questions feel free to contact, San Diego Attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Lawyer
