People v. Robinson
122 Cal. App. 4th 275, 18 Cal. Rptr. 3d 744 (2004)
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Rule of Law:
A prior conviction used to elevate a petty theft charge to a felony under Penal Code § 666 is a sentencing factor, not a substantive element of the offense, and therefore evidence of the prior conviction does not need to be presented at the preliminary hearing.
Facts:
- Kevin Rashun Robinson entered a Ralphs grocery market and was observed by employees David Pena and Mario Garcia acting unusually in the liquor aisle.
- Pena saw Robinson place one bottle of Jack Daniels inside his jacket.
- Garcia found two security tags on the floor near where Robinson had been standing.
- Robinson exited the store without paying for any merchandise.
- When confronted outside by Pena and Garcia, Robinson became aggressive, denied the theft, and struck Garcia on the shoulder.
- While walking away, Robinson removed a bottle of Jack Daniels from his pants and threw it at Garcia.
- As Robinson began to run, a second bottle of Jack Daniels fell from his pants.
Procedural Posture:
- The San Diego County District Attorney charged Kevin Rashun Robinson in a complaint with two counts of robbery and several prior conviction allegations.
- Following a preliminary hearing in the trial court, Robinson was held to answer on both robbery counts.
- The prosecution then made a motion to amend the information to add a charge of petty theft with a prior offense under § 666, which the trial court granted without objection.
- A jury acquitted Robinson of the robbery charges but convicted him of petty theft.
- In a subsequent bench trial, the trial court found the prior conviction allegations true and sentenced Robinson to four years in prison.
- Robinson (appellant) appealed the judgment to the California Court of Appeal.
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Issue:
Does Penal Code § 1009 prohibit the prosecution from amending an information to add a charge of felony petty theft with a prior under § 666 if evidence of the prior conviction was not presented at the preliminary hearing?
Opinions:
Majority - Benke, Acting P. J.
No. The amendment is not prohibited because Penal Code § 666 is a discretionary sentencing statute that provides an alternate, elevated penalty for recidivists; it does not establish a separate substantive offense where the prior conviction is an element of the crime. The court reasoned that § 666 operates like the three strikes law, where prior convictions are sentencing factors, not elements of the current offense. Therefore, evidence supporting the prior convictions need not be adduced at the preliminary hearing. Furthermore, due process was not violated because the original complaint, which alleged prior convictions for other purposes, provided Robinson with adequate notice of the potential for an increased penalty. Since the amendment was proper, defense counsel was not ineffective for failing to object.
Analysis:
This decision solidifies the classification of Penal Code § 666 as a penalty provision rather than a statute creating a distinct substantive crime. By aligning § 666 with recidivist sentencing schemes like the three strikes law, the court clarifies that the procedural requirements for proving the underlying offense differ from those for proving the sentencing enhancements. This precedent streamlines the charging process for prosecutors, allowing them to amend an information to include a § 666 charge after the preliminary hearing without having presented evidence of the prior at that stage. This reduces the evidentiary burden on the prosecution at the preliminary hearing in cases involving repeat theft offenders.
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