Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 09F1390
BUTZ, J.Defendant Rhonghea Rhenard Parker pleaded guilty to one count each of possession of cocaine base for sale and transportation of a controlled substance, but denied special allegations that he had two prior Oregon burglary convictions, alleged to be strike offenses within the meaning of the three strikes law. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12.) Following a court trial on the strike allegations, the trial court found one of the strike allegations to be true and sentenced defendant to an aggregate term of 10 years in state prison.
Undesignated statutory references are to the Penal Code.
Defendant’s sole contention on appeal is that the evidence of his Oregon burglary conviction does not establish all of the elements of first degree burglary under California law, and therefore does not constitute a strike within the meaning of the three strikes law. The People concede this to be the case. We accept the concession and shall remand the matter to the trial court for a retrial on the strike allegation.
FACTUAL BACKGROUND
Resolution of this appeal does not require a detailed recitation of the facts underlying defendant’s crimes. Suffice it to say that defendant was pulled over with more than 30 grams of cocaine base in his vehicle; he admitted that he possessed the cocaine base for sale.
Defendant was charged with one count of possession of cocaine base for sale (Health & Saf. Code, § 11351.5) and one count of transportation of a controlled substance (id., § 11352, subd. (a)). As to each count, the complaint also alleged that defendant had been previously convicted of an Oregon narcotics offense, as well as two Oregon first degree burglaries, alleged to be serious felonies within the meaning of Penal Code section 1170.12.
In October 2009, defendant pleaded guilty to each count, but denied the special allegations. The special allegation of the prior narcotics offense was dismissed. Following a court trial on the strike allegations, the trial court found one of the strike allegations to be true. This allegation involved a 1993 Oregon conviction for first degree burglary in which defendant was found to have “unlawfully and knowingly enter[ed] and remain[ed] in... a dwelling, ... with the intent to commit the crime of theft therein.”
The trial court sentenced defendant to an aggregate term of 10 years in state prison (concurrent upper terms of five years for each count, doubled pursuant to the three strikes law; sentence on the transportation count was stayed pursuant to section 654) and the court imposed other orders. This appeal followed.
DISCUSSION
I. Legal Principles
To qualify as a strike, a conviction in another jurisdiction must include all of the elements of the California felony that qualifies as a strike. (People v. Zangari (2001) 89 Cal.App.4th 1436, 1440 (Zangari); see § 1170.12, subd. (b)(2); see also § 667.5, subd. (f).) In determining whether an out-of-state prior is a strike for purposes of the three strikes law, “‘the trier of fact may consider the entire record of the proceedings leading to imposition of judgment on the prior conviction to determine whether the offense of which the defendant was previously convicted involved conduct which satisfies all the elements of the comparable California serious felony offense.’ [Citation.] [¶] ‘“[W]hen the record does not disclose any of the facts of the offense actually committed” [citation], a presumption arises that the prior conviction was for the least offense punishable [citation]. However, the record need only contain additional evidence from which the court can reasonably presume that an element of the crime was adjudicated in the prior conviction.’” (Zangari, supra, 89 Cal.App.4th at p. 1440; People v. Myers (1993) 5 Cal.4th 1193, 1195; People v. Purata (1996) 42 Cal.App.4th 489, 493.)
First degree burglary is a strike offense. (§§ 1170.12, subd. (b)(1), 1192.7, subd. (c)(18).) However, California and Oregon define first degree burglary differently. In California, “[b]urglary is the entry of a building with intent to commit grand or petit larceny or any felony.” (People v. Carter (1933) 130 Cal.App. 95, 96; § 459.) “Every burglary of an inhabited dwelling house... is burglary of the first degree.” (§ 460, subd. (a).) “‘[I]nhabited’ means currently being used for dwelling purposes, whether occupied or not.” (§ 459.)
In Oregon, “[e]xcept as otherwise provided in ORS 164.255 [defining the crime of criminal trespass], a person commits the crime of burglary in the second degree if the person enters or remains unlawfully in a building with intent to commit a crime therein.” (Or. Rev. Stat. § 164.215, subd. (1).) There, burglary is of the first degree if “the building is a dwelling, ” or if the person, while entering, remaining in, or immediately fleeing from the building (1) “[i]s armed with a burglary tool or theft device... or a deadly weapon”; (2) “[c]auses or attempts to cause physical injury to any person”; or (3) “[u]ses or threatens to use a dangerous weapon.” (Or. Rev. Stat. § 164.225, subd. (1)(a), (b) & (c).) “‘Dwelling’ means a building which regularly or intermittently is occupied by a person lodging therein at night, whether or not a person is actually present.” (Or. Rev. Stat. § 164.205, subd. (2).)
Thus, because a first degree burglary in Oregon can be committed in ways other than entering an inhabited dwelling with intent to commit a theft or felony, in order for defendant’s 1993 Oregon burglary conviction to constitute a strike under California law, the record of the prior conviction must contain evidence from which the trial court could reasonably presume that defendant entered an inhabited dwelling with intent to commit a theft or felony.
II. Evidentiary Deficiencies
Defendant asserts two deficiencies in the evidence, only one of which has merit. We address both in order to provide guidance on remand.
A. Element of Asportation
Defendant argues that there was insufficient evidence that he entered the Oregon dwelling with the intent to commit theft, as understood under California law, because theft under Oregon law does not require the element of asportation. We disagree.
The People rely heavily on Zangari, supra, 89 Cal.App.4th 1436, in which the defendant had a prior Oregon burglary conviction for “‘unlawfully and knowingly enter[ing] and remain[ing] in a dwelling located at 281205 Mill Creek Rd., Prineville, Oregon, with the intent to commit the crime of theft therein.’” (Zangari, supra, 89 Cal.App.4th at p. 1441.) Acknowledging that “the statutory definition of a theft in Oregon does not contain the essential asportation element of a California theft, ” the Court of Appeal, First Appellate District, Division Four, nevertheless concluded that the defendant’s Oregon burglary conviction qualified as a strike under California law because “[t]he amended judgment ordered that [the] defendant pay restitution in the amount of $1,030.89 to ‘Steve and Anita Krier 281205 Mill Creek Road, Prineville, Or 97754.’ ‘This amount shall be reduced if additional property is recovered in satisfactory condition upon motion of the State of Oregon.’ A reasonable inference from this record is that personal property was carried away from the burglarized premises.” (Id. at p. 1448.) Thus, the court could reasonably conclude that the defendant was convicted of entering the building with the intent not only to take property, but also to carry this property away from the building.
Similarly, here, defendant’s Oregon burglary conviction was for “unlawfully and knowingly enter[ing] and remain[ing] in a building, to wit: a dwelling, located at 1117 Reddy Street, Medford, with the intent to commit the crime of theft therein.” The judgment of conviction ordered that defendant pay restitution in the amount of $1,419.41 to Allstate Insurance Claims and $250 to Julia Dougan at 117 Reddy Street, Medford, Oregon 97504.
While the Oregon indictment lists the burglarized address as “1117 Reddy Street” and the restitution order awards $250 to Julia Dougan at “117 Reddy Street, ” we conclude that this is merely a typographical error.
The People argue that this restitution order “raise[s] the same reasonable inference as was raised in Zangari-that [defendant] was ordered to pay restitution to Julia Dougan for property that was carried away during the burglary.” Defendant responds by asserting that “[t]he restitution order in this case does not show that property [he] intended to steal was moved” because the “restitution could have been for damage to property occasioned by forced entry” or “for knocking over an expensive item” while in the building. Accordingly, argues defendant, the restitution order “does not show asportation.”
We agree with defendant that, unlike Zangari, the restitution order in this case does not provide a reasonable inference that property was actually carried away from the burglarized premises. In Zangari, the reasonable inference of asportation arose not simply from the fact that restitution was ordered to be paid to an individual living at the burglarized premises, but also from the fact that the restitution amount was to be reduced if additional property was recovered in satisfactory condition. The court could infer from the fact that property was missing, and therefore needed to be recovered, that this property was carried away from the premises. Here, the restitution order includes no such recovery clause. As defendant correctly observes, for all we know, restitution could have been ordered simply because he damaged an expensive custom-made window in gaining entry into the building.
The People counter by arguing that, even if the restitution order was for property damage, as opposed to removing property from the premises, “in order to inflict any such damage there would have to be at least slight movement of that property, which is all that is required under California law anyway.” While this argument is enticing in its simplicity, we must disagree.
For all we know, defendant possessed the intent to steal electronic equipment from the building, shattered an expensive window with a crowbar while gaining entry, and fled the moment the window shattered. In that scenario, the crime of burglary would have been complete the moment the crowbar broke through the window and entered the building, regardless of whether defendant followed. (See People v. Garcia (2004) 121 Cal.App.4th 271, 280-281.) However, we find it difficult to accept that such a breaking of a window would amount to the asportation of the window.
And while, in addition to being charged with first degree burglary (count 1), defendant was also charged with the theft of a television and CD player (counts 2-4), he pleaded guilty only to the first degree burglary; therefore, we cannot infer from these charged thefts that defendant, after entering the building with the intent to commit theft, actually took and carried away the television and CD player, or that he damaged these items, and in so doing, moved them sufficiently to satisfy the asportation element under California law. (See People v. Davis (1998) 19 Cal.4th 301, 305 [“if the taking has begun, the slightest movement of the property constitutes a carrying away or asportation”]; see also People v. Shannon (1998) 66 Cal.App.4th 649, 655 [“any movement with the requisite intent” completes the theft].)
Accordingly, unlike Zangari, the restitution order for defendant’s 1993 Oregon burglary conviction does not provide a reasonable inference that property was actually carried away from the building, and therefore that defendant was convicted of entering the building with the intent not only to take property, but also to carry this property away from the building.
Nevertheless, we reject defendant’s assertion that the record of his Oregon burglary conviction must establish that property was actually removed from the building in order to constitute a strike offense under California law. Defendant was convicted of first degree burglary for entering a dwelling with the intent to commit theft. Theft, under California law, requires the element of asportation, not burglary. Accordingly, defendant must have entered the dwelling with the intent to take and carry away property from the premises, and by so doing, permanently deprive the owner of the value of the property. He need not have actually taken or carried away anything. The intent to do so suffices. There is no reasonably conceivable scenario in which a defendant could break into the dwelling of another with the intent to steal property, and yet not intend to carry this property away, or at least move the property enough to satisfy the asportation element under California law.
B. Dwelling Must Be Inhabited
We do agree with defendant’s argument that there was insufficient evidence that the Oregon dwelling was inhabited within the meaning of California law.
As we have already explained, first degree burglary in California is the burglary of an “inhabited dwelling, ” i.e., a building that is “currently being used for dwelling purposes, whether occupied or not.” (§§ 459, 460, subd. (a).) In Oregon, however, burglary is of the first degree if “the building is a dwelling, ” i.e., “a building which regularly or intermittently is occupied by a person lodging therein at night, whether or not a person is actually present.” (Or. Rev. Stat. §§ 164.225, subd. (1), 164.205, subd. (2).) Thus, while the burglary of a vacant apartment does not constitute first degree burglary in California because the apartment is not currently being used for dwelling purposes (People v. Valdez (1962) 203 Cal.App.2d 559, 563; see also People v. Cardona (1983) 142 Cal.App.3d 481, 483), such a burglary is of the first degree in Oregon because the apartment, while currently vacant, is occupied intermittently (State v. Ramey (Or.Ct.App. 1988) 749 P.2d. 1219, 1220-1221).
Here, as the People concede, the record of conviction contains no evidence from which the trial court could reasonably infer that the burglarized building was an inhabited dwelling, as opposed to a vacant dwelling. Accordingly, we must reverse the trial court’s finding that defendant’s 1993 Oregon burglary conviction constitutes a strike conviction under the three strikes law, and remand the matter to the trial court for a retrial on that allegation. (See People v. Sotello (2002) 94 Cal.App.4th 1349, 1356-1357.)
DISPOSITION
The finding that defendant’s 1993 Oregon burglary conviction constitutes a strike conviction under the three strikes law is reversed and the matter is remanded to the trial court for a retrial on that allegation. In all other respects, the judgment is affirmed.
We concur: RAYE, P. J., NICHOLSON, J.