P. v. Reahm
Filed 8/2/07 P. v. Reahm CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, Plaintiff and Respondent, v. PAUL ERIC REAHM, Defendant and Appellant. | E041827 (Super.Ct.No. RIF130635) OPINION |
APPEAL from the Superior Court of Riverside County. Janice M. McIntyre, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, Robert M. Foster and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant pled guilty to petty theft with a prior conviction. (Pen. Code, 666.)[1] At the sentencing, defendant was sentenced for two different cases, one of which is the subject of this appeal.[2] In both cases, defendant was sentenced to two years in state prison with the sentences to run concurrently. On appeal, defendant essentially contends that he was denied due process because he was charged with and convicted of a violation of section 666, and not a violation of a substantive offense.
FACTS
Defendant pled guilty to a violation of section 666 prior to a preliminary hearing. The complaint alleges, defendant PAUL ERIC REAHM committed a violation of Penal Code section 666, a felony, in that on or about May 4, 2006, in the County of Riverside, State of California, he did wilfully and unlawfully steal, take, and carry away the personal property of another, to wit, KOHLS . . . .
DISCUSSION
Defendant was Not Denied Due Process
Defendant essentially contends that his due process rights were violated when he was convicted of violating section 666 (a sentencing provision), but was not charged with nor convicted of violating section 484the substantive crime of petty theft. Defendant is correct that section 666 does not establish a separate, substantive crime of petty theft with a prior conviction. Rather, it is a sentencing statute, establishing an alternate and elevated penalty for a petty theft conviction upon a finding of a qualifying prior conviction. (People v. Tardy (2003) 112 Cal.App.4th 783, 787, citing People v. Bouzas (1991) 53 Cal.3d 467, 478.) The People acknowledge that legal shorthand [was] used by all of the trial participants. However, the People argue reversal is not required since defendant had actual notice that he was charged with petty theft, in addition to the section 666 sentencing factor.[3]
Due process requires that an accused be advised of the charges against him in order that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial. (People v. West (1970) 3 Cal.3d 595, 612.) Because a complaint is [t]he first and only official information that a defendant receives regarding the charges against him prior to trial, due process requires the information to be adequate to enable him to answer the charge. (People v. Saffell (1946) 74 Cal.App.2d Supp. 967, 976.) However, [d]ue process . . . does not require the state to adopt any particular form of procedure, so long as it appears that the accused has had sufficient notice of the accusation and an adequate opportunity to defend himself in the prosecution. (Garland v. Washington (1914) 232 U.S. 642, 645.)
In addition, whether or not notice to a defendant is adequate is not determined solely by the charging statute. (People v. Haskin (1992) 4 Cal.App.4th 1434, 1439.) For example, a reference to an incorrect penal statute may be overcome by factual allegations sufficient to inform a defendant of the crime charged. (Ibid., citing People v. Thomas (1987) 43 Cal.3d 818 and People v. Neal (1984) 159 Cal.App.3d 69.) In this case, defendant was informed via the factual allegations in the complaint that he was being accused of theft, despite the failure to mention section 484 specifically.
The complaint filed in this case specifically alleged that defendant had committed a theft by wilfully and unlawfully steal[ing], tak[ing], and carry[ing] away the personal property of another. Therefore, the factual allegations under count 1 (charged under 666) put defendant on notice that the People were seeking to prove that he had committed a theft. It also put him on notice that, should the People succeed in proving the allegation, he could be subject to three years eight months in prison. Although section 484 was not specifically referenced in the complaint, defendant was on notice, due to the factual allegations that he was being accused of committing a petty theft.
Because the adequacy of notice is not determined solely by the charging statute, it is clear defendant had sufficient notice, which was provided in the factual allegations of the complaint, that he was being accused of theft.
In summary, the complaint filed against defendant meets the due process requirement that defendant be given sufficient notice of the charges against him so that he may prepare an adequate defense and not be surprised by evidence offered at trial.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P.J.
We concur:
McKINSTER
J.
RICHLI
J.
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[1]All further statutory references are to the Penal Code unless otherwise indicated.
[2]The second case (RIF131714) is factually unrelated to this matter. However, when defendant was sentenced, the second case was determined to be the principle case. The court takes judicial notice of the complaint in case No. RIF131714.
[3]In the alternative, the People argue that, by not demurring to the complaint, defendant waived any defect in the form of the allegations. (People v. Jackson (1978) 88 Cal.App.3d 490, 500 [Failure to demur to an information on the ground of uncertainty constitutes a waiver of the objection].) We, nevertheless, decide this case on its merits, as the issue is easily resolved on the merits.
