Opinion
TURNER, P. J.
I. INTRODUCTION
Defendant, Kenneth Charles Rader, enjoyed a meal at a steak house and then paid $100 of the bill with counterfeit $20 bills. He left the restaurant and was arrested shortly thereafter. He stands convicted of one count of second degree burglary (Pen. Code, § 459);
two counts of felony theft (§§ 484, subd. (a), 666) and two counts of forgery (§§ 472, 476). Defendant admitted he had sustained a prior violent and serious conviction within the meaning of sections 666, subdivision (b)(1), 667, subdivisions (b) through (i) and 1170.12. Defendant also admitted he had sustained prior nonviolent and nonserious theft-related felony convictions within the meaning of section 666, subdivisions (a) and (b). Defendant was sentenced to five years four months in state prison. In the published portion of this opinion, we hold defendant can only be convicted of a single count of theft. Further, we conclude that defendant may be convicted of felony petty theft rather than the misdemeanor charge of defrauding an innkeeper (or in this case a restaurant).
II. THE EVIDENCE
On Friday, May 25, 2012, at approximately 2:00 p.m., defendant entered an Outback Steakhouse restaurant in the City of Industry. Defendant was joined by a man identified only as Jeff. When arrested later and interviewed in a nearby mall security office, defendant claimed the person identified only as Jeff was a nephew. But when interviewed by a detective at a sheriff’s station, defendant refused to provide any identifying information including the man’s first and last name. For convenience’s sake, we shall refer to the otherwise unidentified individual who ate with defendant in the Outback Steakhouse as
Jeff. Jeff was accompanied by a young woman, Julian Fernandez. All three ordered food and drinks. The dinner bill came to $100.53. Someone paid the bill with five counterfeit $20 bills and two $1 bills.
Melissa Rodriguez had waited on defendant’s table. Ms. Rodriguez did not see who left the cash. But she recognized the $20 bills as counterfeit. Ms. Rodriguez went outside. She saw defendant, Jeff and Ms. Fernandez walking across the restaurant parking lot into a mall. Ms. Rodriguez called out to them. Defendant turned his head slightly to look at Ms. Rodriguez. But he turned back and kept walking. Ms. Rodriguez described what happened next, “[Defendant] and the other two people that were with him started zigzagging in and out of cars.” Defendant walked into the mall.
Ms. Rodriguez and the restaurant manager followed defendant into the mall. Ms. Rodriguez gave a description of the three individuals to a mall security guard. Ms. Rodriguez located Ms. Fernandez and summoned the security guard. As the security guard detained Ms. Fernandez, Ms. Rodriguez saw defendant exit one store and enter another. Defendant glanced in Ms. Rodriguez’s direction, looked down and kept walking. Ms. Rodriguez, accompanied by a second security guard, approached defendant. The following transpired, according to Miss Rodriguez: “Q And then what happened? [IQ A I approached him. He was looking at shirts. He looked up and looked back down. And I then said, ‘Excuse me.’ And that’s when he looked at me, and I said, ‘We have your friend.’ [][] And that’s when he said, T know. I heard something about that. What’s going on?’ [¶] . . . [¶] Q What happened next? [¶] A And I said, ‘Oh, you know, we have a problem.’ [][] And he said, ‘Okay. But I didn’t pay the check.’ [][] . . . [¶] A I said, ‘Okay. But can you just please come with us[?]’ [][] Q And what, if anything, did he do? [¶] A He followed.” When Ms. Rodriguez asked defendant whether he could pay the restaurant bill, he said he did not have any money.
Ms. Rodriguez returned to the restaurant where she was met by Deputy Bob Chu. Ms. Rodriguez told Deputy Chu she had three customers who paid with counterfeit bills. Deputy Chu examined the five $20 bills and determined they were counterfeit. Deputy Chu and Ms. Rodriguez returned to the mall. Defendant was inside the mall security office. Ms. Rodriguez identified defendant as the person who had been in the restaurant.
Defendant was advised of his rights. Defendant agreed to talk to Deputy Chu. Deputy Chu testified: “[Defendant] told me that he was in the area because he saw the Outback Steakhouse right off the freeway. And he decided to go there and get some food. He said that — he told me he went there to eat, and he did not have any money on him because he had spent his money buying gas going from Oceanside to Riverside.” Defendant said Jeff paid the
restaurant bill. Defendant said he did not know the $20 bills were counterfeit. Defendant said he did not see Ms. Rodriguez trying to stop him in the parking lot. Defendant said he was going to Sears to buy a car battery. Defendant did not have a car battery in his possession when he was detained.
Detective Alfredo Gomez was the detective assigned to the case. On May 26, 2012, Detective Gomez spoke with defendant in a jail cell. The interview, which lasted 10 to 15 minutes, was not recorded. Defendant was advised of his constitutional rights. Defendant agreed to speak with Detective Gomez. Detective Gomez testified he believed he was going to be lied to. Thus, while interviewing defendant, Detective Gomez decided to engage in a ruse. Detective Gomez described the ruse and defendant’s response as follows: “I told the defendant that the arresting deputy didn’t have an opportunity to view the surveillance video at the restaurant and that I did. And I told him I already knew what happened and I saw what happened and who paid for it. So then he admitted to me that he paid for the — for the food.” In fact, there was no surveillance video system at the restaurant. According to Detective Gomez, defendant made the following statement, “He told me his nephew Jeff had given him the money earlier in the day for gas and food.” Defendant denied knowing the bills were counterfeit. Detective Gomez confronted defendant about having lied to Deputy Chu about paying for the food. Defendant said nothing in response when confronted about having lied to Deputy Chu. Detective Gomez then described his efforts to find out about the individual identified only as Jeff: “I wanted to go into trying to find out who Jeff was, his nephew, and he didn’t want to give me any details, any identifying information as far as first name, birth date, last name, you know, so maybe I could speak to Jeff. And that’s where I concluded the interview.”
III. DISCUSSION
A. Procedural History
Many of the issues presented by the parties involve the interplay between sections 484, subdivision (a) and 666. We begin by setting forth the information’s allegations concerning counts 2 and 3. In count 2, the information alleges in part: “On or about May 25, 2012 . . . , the crime of PRIOR [PETTY] THEFT-290/STRIKE, in violation of PENAL CODE SECTION 666(b), a Felony, was committed by [defendant], who did unlawfully and in violation of Penal Code section 484(a), steal take and carry away the personal property of OUTBACK STEAKHOUSE. It is further alleged that defendant was previously convicted in the State of California of the crime(s) listed below and served a term for each crime in a penal institution and was imprisoned therein as a condition of probation.” The information alleges three nonviolent and nonserious felony convictions sustained in San Diego County:
a January 21, 1993 conviction for violating Vehicle Code section 10851, subdivision (a) (case No. CRN23272); a June 23, 2004 conviction for receiving stolen property in violation of section 496 (case No. SCN180434); and a September 13, 2011 conviction for second degree burglary in violation of section 459 (case No. SCN278526). In addition, the information alleges as to count 2 defendant had sustained a prior violent or serious felony conviction on October 30, 1978, in San Diego County for robbery in violation of section 211 in case No. CRN5384. Finally, as to count 2, the information concludes, “It is further alleged that prison custody time for the offense is to be served in state prison.”
Count 3 of the information alleges a theft count arising out of the same incident at the Outback Steakhouse against defendant: “On or about May 25, 2012 . . . , the crime of PETTY THEFT WITH 3 PRIORS, in violation of PENAL CODE SECTION 666(a), a Felony, was committed by [defendant], who did unlawfully and in violation of Penal Code section 484(a), steal [,] take and carry away the personal property of OUTBACK STEAKHOUSE. It is further alleged that defendant was previously convicted in the State of California of the crimes listed below and served a term for each crime in a penal institution and was imprisoned therein as a condition of probation.” The three San Diego County nonviolent and nonserious prior felony convictions are the same as those alleged in count 2 — vehicle theft, receiving stolen property, and second degree burglary. Count 3 does not reallege the prior October 30, 1978 San Diego County robbery conviction alleged in count 2. Unlike count 2, count 3 contains no allegation that any sentence must be served in state prison.
Prior to trial, defendant admitted all the allegations of four prior San Diego County convictions were true. In this way, defendant precluded the jury from learning of those prior convictions. (See
People
v.
Bouzas
(1991) 53 Cal.3d 467, 480 [279 Cal.Rptr. 847, 807 P.2d 1076] [“Under established case law . . . applying sections 666, 1025, and 1093, defendant had a right to stipulate to the prior conviction and incarceration and thereby preclude the jury from learning of the fact of his prior conviction.”];
People v. Witcher
(1995) 41 Cal.App.4th 223, 233 [48 Cal.Rptr.2d 421] [same].) Consistent with CALCRIM No. 1800, the trial court indicated it would not identify the charged offense as either a petty or grand theft when explaining the charges to the jury. With the consent of both counsel, the trial court stated, “I would not identify either as a petty theft or a grand theft, but it would just be going in as a theft as a felony.”
The trial court stated that only one theft offense would be presented to the jury: “So based upon counsels’ agreement, the jury will not be presented with the separate offenses based upon defendant’s request of 666(a) and (b). Those
will be considered sentencing issues for the court if the defendant is convicted of count 2 .... [¶] And the jury will not be making separate findings as to count 2 and 3 but will be relying upon the modified count 2, again which will only support a sentencing issue if the defendant is convicted.” The trial court then directed the prosecutor not to mention the alleged prior convictions. The deputy district attorney, John F. Urgo, was advised to instruct the prosecution witnesses to make no mention of defendant’s prior convictions. The case was presented to the jury after renumbering the counts to reflect there was a single theft charge. The jury was advised that count 1 involved the burglary charge; count 2 involved only a single theft charge; count 3 charged defendant with forgery; and count 4 involved possession of a counterfeit government seal.
In compliance with the parties’ agreement, the jury was instructed with a modified version of CALCRIM No. 1800.
The jurors returned a single verdict as to the renumbered theft charge in count 2, “We, the jury in the above-entitled action, find the defendant. . . GUILTY of the offense charged, to wit: the crime of THEFT, in violation of Penal Code section 484, a felony, as charged in Count 2 of the Information.” But defendant was sentenced on two counts of petty theft. As to counts 1 through 4, defendant received a midterm sentence of two years. The trial court ruled, “Those counts will merge pursuant to Penal Code section 654.” As to count 5, possession of a counterfeit seal, the trial court imposed a consecutive term of eight months. Thus, the trial court orally calculated the sentence of two years eight months. The trial court doubled that term because of defendant’s prior San Diego County robbery conviction for a total sentence of five years four months. In the unpublished portion of the opinion, we discuss various sentencing issues.
B. Pleading and Trying Two Petty Thefts
As noted, defendant stands convicted of two counts of petty theft for using counterfeit bills on a single occasion to pay for a meal. Defendant argues that he may not be charged in both counts 2 and 3 for the same petty theft. Defendant reasons that counts 2 and 3 involve a single offense — the petty theft from the restaurant.
(People v. Bouzas,
supra, 53 Cal.4th at p. 469;
People v. Witcher, supra,
41 Cal.App.4th at p. 233.) Because both counts
involve a single offense, defendant argues either the conviction under count 2 or 3 must be vacated. We need not address any issue of pleading or trying count 3. As we will note, the judgment as to count 3 must be reversed.
Defendant correctly argues that section 666 does not define an offense; rather it is a sentencing provision. Our Supreme Court explained in some detail why section 666 is not an “offense” as follows: “Section 666 is — and has been since 1872 — part of title 16 of the Penal Code, which is directed primarily to sentencing and punishment matters, to the exclusion of statutes defining substantive crimes (see
[People
v.]
Cooks
[(1965)] 235 Cal.App.2d [6,] 10 [44 Cal.Rptr. 819] [history of former §§ 666 & 667]). This supports our conclusion that the Legislature has long intended that section 666 establishes a penalty, not a substantive ‘offense.’ [¶] The language of section 666 affirms this view. It is structured to enhance the punishment for violation of other defined crimes and not to define an offense in the first instance. It simply refers to other substantive offenses defined elsewhere in the Penal and Vehicle Codes and provides that if a defendant has previously been convicted of and imprisoned for any of these theft-related offenses, and thereafter commits petty theft (defined in section 484), the defendant is subject to punishment enhanced over that which would apply following a ‘first time’ petty theft conviction. [][] In other words, a charge under section 666 merely puts a defendant on notice (see § 969 [prior convictions must be alleged in the information]) that if he is convicted of the substantive offense and if the prior conviction and incarceration allegation of section 666 is admitted or found true, he faces enhanced punishment at the time of sentencing. We conclude that, on its face, section 666 is a sentence-enhancing statute, not a substantive ‘offense’ statute.’ ”
(People v. Bouzas, supra,
53 Cal.4th at pp. 478-479; see
People
v.
Shaw
(2009) 177 Cal.App.4th 92, 101 [99 Cal.Rptr.3d 112].) Section 666 defines the potential penalties for petty theft with specified theft-related prior convictions and incarceration requirements. (§ 666, subd. (a), (b);
People
v.
Bouzas, supra,
53 Cal.3d at p. 471 [“section 666 . . . provides that a defendant who has been convicted of and imprisoned for enumerated theft-related crimes (certain misdemeanors and felonies) and who is subsequently convicted of petty theft ‘is punishable by imprisonment . . . .’ ”];
People v. Robinson
(2004) 122 Cal.App.4th 275, 281 [18 Cal.Rptr.3d 744] [“Section 666 ... is a discretionary sentencing statute which, upon the establishment of a qualifying prior conviction, allows the trial court to punish petty theft as either a felony or a misdemeanor.”].) Thus, counts 2 and 3 charge the substantive offense of petty theft.
We agree defendant may not be convicted under both counts 2 and 3. When a single theft occurs on a single occasion as part of one transaction, only one conviction may be returned. In
People
v.
Nor Woods
(1951) 37 Cal.2d 584, 586-587 [233 P.2d 897], a used car dealer was convicted of two grand theft counts. The used car dealer took both a 1946 Ford and some cash in
exchange for a 1949 Ford. The 1946 Ford was taken as a trade-in for the newer 1949 model. The used car dealer then failed to deliver the 1949 Ford or to return the 1946 Ford and the money to the victim. Our Supreme Court held under these circumstances only a single theft occurred: “Defendant contends that at most he was guilty of the commission of one offense. We agree with this contention. It is unnecessary to determine under what circumstances the taking of different property from the same person at different times may constitute one or more thefts. (See
People
v.
Howes
[(1950)] 99 Cal.App.2d 808, 818-821 [222 P.2d 969], and cases cited.) In the present case both the car and the money were taken at the same time as part of a single transaction whereby defendant defrauded [the victim] of the purchase price of the 1949 Ford. There was, accordingly, only one theft. . . .”
(People
v.
Nor Woods, supra,
37 Cal.2d at pp. 586-587; see
In re Johnson
(1966) 65 Cal.2d 393, 395 [54 Cal.Rptr. 873, 420 P.2d 393];
People v. Neder
(1971) 16 Cal.App.3d 846, 853, fn. 3 [94 Cal.Rptr. 364].) Our Supreme Court later characterized the decision in
Nor Woods
as holding the used car dealer was improperly convicted of two counts of theft rather than only one count. (See
People v. Correa
(2012) 54 Cal.4th 331, 339-340 [142 Cal.Rptr.3d 546, 278 P.3d 809].) Here, counts 2 and 3 involve the same theft of the identical meal on a single occasion at the Outback Steakhouse on May 25, 2012. Thus, the judgment as to count 3 must be reversed. Upon remittitur issuance, count 3 is to be dismissed. We need not address defendant’s remaining contentions concerning count 3.
C. Defendant May Be Convicted of Felony Petty Theft
1. Defendant’s contention
Defendant argues his count 2 four-year sentence (§§ 484, 666, subd. (b)) must be reversed because his conduct can only be prosecuted under section 537, subdivision (a), not section 484, subdivision (a). Defendant relies on
In re Williamson
(1954) 43 Cal.2d 651, 654 [276 P.2d 593] (Williamson) and
People v. Fiene
(1964) 226 Cal.App.2d 305, 306 [37 Cal.Rptr. 925]
iFiene).
We disagree.
2. The statutes
Both sections 484 and 537, subdivision (a) involve theft-related conduct. Section 484, subdivision (a) provides, “Every person . . . who shall knowingly and designedly, by any false or fraudulent representation or pretense,
defraud
any other person of money ... or personal property ... is guilty of theft.” (Italics added.) Where the value of the thing taken is less than $950, the offense is a petty theft. (§§ 487, subd. (a), 488.) Section 490 states, “Petty theft is punishable by fine not exceeding one thousand dollars
($1,000), or by imprisonment in the county jail not exceeding six months, or both.” (§ 490.) Petty theft is generally punished as a misdemeanor. (§ 17, subd. (a);
People
v.
Williams
(2004) 34 Cal.4th 397, 404, fn. 4 [19 Cal.Rptr.3d 619, 98 P.3d 876];
People
v.
Crossdale
(2002) 27 Cal.4th 408, 410-411 [116 Cal.Rptr.2d 686, 39 P.3d 1115].)
Section 537, subdivision (a), proscribes conduct including defrauding an innkeeper. Section 537, subdivision (a), states in part: “Any person who obtains any food [or] services . . . at a . . . restaurant . . . without paying therefor, with intent to
defraud
the proprietor or manager thereof ... or who, after obtaining . . . food [or] services . . . at [a] . . . restaurant . . . absconds, . . . with the intent not to pay for his or her food ... is guilty of a public offense punishable as follows: [¶] (1) If the value of the . . . food . . . is nine hundred fifty dollars ($950) or less, by a fine not exceeding one thousand dollars ($1,000) or by imprisonment in the county jail for a term not exceeding six months, or both.” (Italics added.) The punishments for petty theft and defrauding an innkeeper are the same.
As noted, the prior conviction facet of section 666 is not an element of section 484.
(People
v.
Bouzas, supra,
53 Cal.3d at pp. 478-479; see
People
v.
Shaw, supra, 177
Cal.App.4th at p. 101.) Thus, a petty theft in violation of section 484, ordinarily a misdemeanor, may be elevated to a felony when charged as a petty theft with a prior conviction under section 666.
(People
v.
Williams, supra,
34 Cal.4th at p. 404, fn. 4;
People v. Artis
(1993) 20 Cal.App.4th 1024, 1026 [25 Cal.Rptr.2d 63].) But felony petty theft is not a substantively different offense than misdemeanor petty theft. The elements of petty theft as a misdemeanor or a felony are precisely the same. The difference between the misdemeanor and felony theft is not because they have different elements: it is because petty theft is made a felony because of a sentencing statute — section 666. Defendant was sentenced on count 2 pursuant to section 666, subdivision (b). At the time defendant committed the present offense, former section 666, subdivision (b) stated: “Notwithstanding Section 490 [(specifying the punishment for petty theft)], any person [who has a prior violent or serious felony conviction, as specified in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7] who, having been convicted of petty theft . . . and having served a term of imprisonment therefor in any penal institution or having been imprisoned therein as a condition of probation for that offense, who is subsequently convicted of petty theft, is punishable by imprisonment in the county jail not exceeding one year, or in the state prison.” (Former § 666, subd. (b), as amended by Stats. 2011, ch. 39, § 21, eff. June 30, 2011.) Section 666 was amended effective January 1, 2014, i.e., subsequent to the present offense, to add “a conviction pursuant to subdivision (d) or (e) of Section 368” to the qualifying prior convictions in subdivisions (a) and (b). The amendment also made minor grammatical changes. (Stats. 2013, ch. 782, § 1.)
3. The
Williamson
rule
In
Williamson,
our Supreme Court held: “ ‘It is the general rule that where the general statute standing alone would include the same matter as the special act, and thus conflict with it, the special act will be considered as an exception to the general statute whether it was passed before or after such general enactment.’ ”
(Williamson, supra,
43 Cal.2d at p. 654, quoting
People v. Breyer
(1934) 139 Cal.App. 547, 550 [34 P.2d 1065].) We will discuss the “conflict” aspect of the
Williamson
rule shortly. The general and special statutes must be construed to carry out the legislative objective.
(Williamson, supra,
43 Cal.2d at p. 655.) The
Williamson
rule is further explained in
People v. Murphy
(2011) 52 Cal.4th 81, 86 [127 Cal.Rptr.3d 78, 253 P.3d 1216]: “Under the
Williamson
rule, if a general statute includes the same conduct as a special statute, the court infers that the Legislature intended that conduct to be prosecuted exclusively under the special statute. In effect, the special statute is interpreted as creating an exception to the general statute for conduct that otherwise could be prosecuted under either statute.
(Ibid.)
‘The rule is not one of constitutional or statutory mandate, but serves as an aid to judicial interpretation when two statutes conflict.’
(People v. Walker
(2002) 29 Cal.4th 577, 586 [128 Cal.Rptr.2d 75, 59 P.3d 150].) ‘The doctrine that a specific statute precludes any prosecution under a general statute is a rule designed to ascertain and carry out legislative intent.’ ” (Quoting
People
v.
Jenkins
(1980) 28 Cal.3d 494, 505-506 [170 Cal.Rptr. 1, 620 P.2d 587]; accord,
People
v.
Walker, supra,
29 Cal.4th at pp. 585-586.)
In
Williamson,
the defendant was charged with conspiring to act as a contractor without a license in violation of the general conspiracy statute, section 182, subdivision (a)(1). The charged conspiracy was punishable as a misdemeanor or as a felony under section 182. However, Business and Professions Code section 7030 specifically provided that conspiring to act as a contractor without a license was a misdemeanor. Our Supreme Court held the specific statute controlled over the general one because, “To conclude that the punishment for the violation of section 7030 of the Business and Professions Code is stated in section 182 of the Penal Code, which deals with conspiracies in general, would be inconsistent with the designation of the particular conspiracy as a misdemeanor.”
(Williamson, supra,
43 Cal.2d at p. 655; see
People
v.
McCall
(2013) 214 Cal.App.4th 1006, 1012-1013 [154 Cal.Rptr.3d 471].)
4.
Fiene
In
Fiene, supra,
226 Cal.App.2d at page 306, the defendant was convicted of violating former section 667 — petty theft with a prior felony conviction.
(Stats. 1941, ch. 106, § 11, pp. 1082-1083.)
The defendant had exited a restaurant without paying his bill. Division Four of this appellate district held section 537 (see Stats. 1959, ch. 1990, § 1, p. 4597)),
prevented the trial court from acquiring jurisdiction in the case.
(Fiene, supra,
226 Cal.App.2d at pp. 307-308.) Both parties agreed the elements of section 537 were the same as those of petty theft in violation of section 484. The Attorney General argued, however, that the Legislature did not intend that section 537 apply when a defendant who committed a petty theft had a prior conviction that qualified him for a greater penalty under section 667. The Attorney General asserted, “The Legislature . . . ‘would not want to give less protection to . . . restaurant proprietors if the defrauding was carried out by a released felon.’ ”
(Fiene, supra,
226 Cal.App.2d at p. 308.) The Court of Appeal disagreed. The Court of Appeal held the defendant’s conduct came within a special statute — section 537. The
Fiene
opinion does not discuss how the theft and defrauding an innkeeper statutes were in conflict. The conflict issue was never raised or discussed. The Court of Appeal reversed the judgment.
(People
v.
Fiene, supra,
226 Cal.App.2d at p. 308.)
Fiene
has not been followed for this proposition in any published California case.
5.
Artis
As noted, the
Fiene
opinion never discussed the “conflict” element of a defense that the accused’s conduct is only subject to a more specific, less onerous offense. Since
Fiene
was decided, courts have clarified that there must be a conflict between the general and specific offenses in order for the accused to benefit. For example, in
People v. Artis, supra,
20 Cal.App.4th at pages 1025-1026, the defendant took a refrigerator from his leased apartment and sold it. The defendant was charged with petty theft with a prior conviction under sections 484 and 666. A section 995 motion to set aside the information on grounds the defendant should have been prosecuted for embezzlement under section 507 was granted. The Court of Appeal reversed the dismissal order.
Section 507 states in part, “Every person entrusted with any property as bailee, tenant, or lodger . . . who fraudulently converts the same or the proceeds thereof to his own use ... is guilty of embezzlement.” The Court of
Appeal for the Fourth Appellate District, Division One, held: “Although Artis refers to his crime as a mere conversion, the Legislature has expressly declared it to be a form of embezzlement. As embezzlement, it is theft. (§ 490a.) As theft it is chargeable as a violation of section 484 and, critical to Artis, it is an offense which may be elevated to felony status when charged as petty theft with a prior. (§ 666.) [][] . . . [][] The starting point is whether the general and special statutes which include the same subject matter contain provisions which conflict.
(In re Williamson[, supra,]
43 Cal.2d [at p.] 654 . . . .) In
Williamson,
a conflict existed because a special statute declared an offense to be a misdemeanor, while a general statute would permit the People to elevate the crime to a felony. ... [][]••• FID Unlike the cases Artis cites, there are no conflicts between the elements to prove, or the punishment for, embezzlement under section 484 and embezzlement defined in section 507. Each is punished ‘in the manner prescribed for theft of property of the value or kind embezzled.’ (§ 514.) Thus, had Artis been a first-time theft offender, he would face a misdemeanor sentence for this ‘petty’ theft regardless of how it was charged. Because there is no conflict between these statutes, Artis currently may be charged under section 484 and thus is subject to the felony enhancing provisions of section 666.”
(People v. Artis, supra,
20 Cal.App.4th at pp. 1026-1027, fn. omitted; see 1 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Introduction to Crimes: Criminal Statutes, § 77, p. 136 [“because there is no conflict between [section] 507 (embezzlement of property by tenant) and [section] 484 (general theft statute), tenant who embezzles property may be charged under either statute”].)
The
Artis
analysis, which clarifies the necessity of a conflict between the general and specific crimes, is consistent with other authority. While discussing the general/special statute jurisprudence, the Court of Appeal for the Third Appellate District explained: “As for the
Gilbert-Gasaway
interpretive principle of a special statute being the exception to a general one on the same subject, that principle’s application has been described succinctly as pivoting on whether there are ‘conflicts between the elements to prove, or the punishment for,’ the statutes at issue.
(Artis, supra,
20 Cal.App.4th at p. 1027.) If so, the special statute is considered an exception to the general statute.
([People v.] Gilbert
[(1969)] 1 Cal.3d [475,] 479 [82 Cal.Rptr. 724, 462 P.2d 580];
Gasaway
[v.
Superior Court
(1977) 70 Cal.App.3d 545,] 550 [139 Cal.Rptr. 27].)”
(Bradwell v. Superior Court
(2007) 156 Cal.App.4th 265, 271 [67 Cal.Rptr.3d 163].) We turn now to
Gilbert
and
Gassaway,
the two decisions cited in
Bradwell.
In
People v. Gilbert, supra,
1 Cal.3d at pages 480-481, our Supreme Court explained the relationship between two misdemeanor welfare fraud and grand theft statutes. In
Gilbert,
the defendant was convicted of violating the general grand theft statute, a felony. Our Supreme Court held the more specific provision, a misdemeanor violation of Welfare and Institutions Code former
section 11482,
was the greatest offense of which the defendant could be convicted. Our Supreme Court then described the type of conflict
Williamson
was designed to mitigate: “Inasmuch as the clause as to false statements applies only to statements made
in obtaining
unauthorized assistance, it follows that any conduct which violated that clause would also constitute a violation of the theft provision of the Penal Code. This overlap of provisions carrying conflicting penalties typifies the kind of conflict which we envisioned in
Williamson-,
it requires us to give effect to the special provision alone in the face of the dual applicability of the general provision of the Penal Code and the special provision of the Welfare and Institutions Code.”
(People v. Gilbert, supra,
1 Cal.3d at p. 481; accord,
Patterson v. Municipal Court
(1971) 17 Cal.App.3d 84, 89 [94 Cal.Rptr. 449] [discussing the
Gilbert
conflict analysis in the context of an amendment to an accusatory pleading in welfare fraud case];
People
v.
Superior Court
(Fuller) (1971) 14 Cal.App.3d 935, 949 [92 Cal.Rptr. 545] [applying
Gilbert
conflict discussion in the context of Veh. Code violations with varying penalties].)
In
Gasaway
v.
Superior Court, supra,
70 Cal.App.3d at pages 547-548, the defendant was accused of four counts of welfare fraud occurring between October 1973 and March 1974. (Welf. & Inst. Code, former § 11483, subd. (2).)
The information was filed more than three years after three of the four alleged acts of welfare fraud. The Court of Appeal ultimately held that the controlling statute of limitations for welfare fraud was three years. But the statute of limitations for grand theft was three years from the
discovery
of the offense, not its commission. Thus, in the view of the Court of Appeal, the limitations period for theft, with its discovery statute of limitations, was more onerous than that for welfare fraud. That aspect of the holding is not controlling in our case. Rather, the relevant discussion in
Gasaway
relates to the conflict analysis in
Gilbert.
In
Gasaway,
the Court of Appeal digested the conflict analysis in
Gilbert
thusly: “[I]n
People v. Gilbert, supra,
1 Cal.3d 475 at page 479, the Supreme
Court specifically held that ‘welfare fraud cannot be prosecuted under section 484 of the Penal Code.’ Gilbert was convicted of fraudulently obtaining more than $200 in aid to families with dependent children in violation of section 484 of the Penal Code. The court held that Welfare and Institutions Code section 11482, as a special provision of the Welfare and Institutions Code dealing with welfare fraud, precluded prosecution of such fraud under the older general theft provision of the Penal Code. [Citation.] ‘As we stated in
In re Williamson[, supra,]
43 Cal.2d [at page 654], “It is the general rule that where the general statute standing alone would include the same matter as the special act, and thus conflict with it, the special act will be considered as an exception to the general statute whether it was passed before or after such general enactment.” [Citations.]’ (1 Cal.3d 475, at p. 479.) The court pointed out the conflict in the penalties provided for in Welfare and Institutions Code section 11482 (a misdemeanor) and Penal Code section 484 (a felony if over $200 is taken; see Pen. Code, §§ 19, 487, subd. 1, 489; see also
People
v.
Legerretta
[(1970)] 8 Cal.App.3d 928 [87 Cal.Rptr. 587]).”
(Gasaway
v.
Superior Court, supra,
70 Cal.App.3d at pp. 549-550, fn. omitted.)
In
Gasaway,
the Court of Appeal noted in the case before it, there was no conflict in the penalties. The Court of Appeal explained: “Here, there is no conflict in penalties, since the penalty for violation of either [Welfare and Institutions Code] section 11483, subdivision (2) or Penal Code section 484 (see Pen. Code, § 489), is imprisonment in state prison for not more than 10 years or county jail for not more than one year. (Welf. & Inst. Code, § 11483, subd. (2); Pen. Code, § 489.)”
(Gasaway v. Superior Court, supra,
70 Cal.App.3d at p. 550.) However, the Court of Appeal held that tire theft offense with a longer statute of limitations was the more onerous provision. As we will explain, no such issue is present here.
To sum up, the
Williamson
decision requires there be a conflict between the two provisions before the general and specific statutes jurisprudence can limit prosecutorial charging discretion.
Gilbert
exemplifies how a conflict can arise in the sentencing context.
Gasaway
explains when there is no conflict in the sentencing context. And
Artis
describes in the theft-related context how there is no conflict in the elements of an offense.
6. Conclusion
We respectfully disagree with the Court of Appeal’s decision in
Fiene.
As noted, the information alleges in relevant parts in counts 2 and 3 that defendant “did steal[,] take and carry away the personal property of’ the steak house. As to count 2, the jury was instructed in part: “The defendant is charged in count 2 with theft. [¶]... [T]o prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant took
possession of property owned by someone else; [1] 2. The defendant took the property without the owner’s or the owner’s agent’s consent; [][] 3. When defendant took the property he intended to deprive the owner of it permanently; [¶] and [][] 4. The defendant moved the property, even a small distance, and kept it for any period of time, however brief.” Thus, as charged and as tried, the theft counts were premised on the following language in section 484, subdivision (a), “Every person who shall feloniously steal [or] take ... the personal property of another ... is guilty of theft.” The information’s allegations and instructions were premised on the theory defendant committed a petty theft by larceny. (See
People v. Gomez
(2008) 43 Cal.4th 249, 254-255 [74 Cal.Rptr.3d 123, 179 P.3d 917];
People
v.
Davis
(1998) 19 Cal.4th 301, 305 [79 Cal.Rptr.2d 295, 965 P.2d 1165].) Theft is divided into two degrees, petty and grand theft. (§ 486;
People
v.
Crossdale
(2002) 27 Cal.4th 408, 410 [116 Cal.Rptr.2d 686, 39 P.3d 1115].) The demarcation between grand and petty theft is now $950. When the value of the property taken exceeds $950, the crime is grand theft. (§ 487, subd. (a); see
Breceda
v.
Superior Court
(2013) 215 Cal.App.4th 934, 953 [156 Cal.Rptr.3d 130];
People v. Wade
(2012) 204 Cal.App.4th 1142, 1150 [139 Cal.Rptr.3d 529].) The $950 differentiation between grand and petty theft was adopted effective January 1, 2011. (Stats. 2010, ch. 693, § 1; Cal. Const, art. IV, § 8, subd. (c)(1).) The punishment for petty theft is as follows, “Petty theft is punishable by fine not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail not exceeding six months, or both.” (§ 490.)
The parties agree the following language in section 537, subdivision (a) covers the same conduct charged in the information. Section 537, subdivision (a) states in part: “Any person who . . . after obtaining . . . food . . . at a[] . . . restaurant. .. absconds . . . therefrom with the intent not to pay for his or her food ... is guilty of a public offense punishable as follows: [¶] (1) If the value of the . . . food ... is nine hundred fifty dollars ($950) or less, by a fine not exceeding one thousand dollars ($1,000) or by imprisonment in the county jail for a term not exceeding six months, or both.” When the value of the food taken exceeds $950, the defendant can be convicted of a felony. (§ 537, subd. (a)(2).) The $950 differentiation between section 537, subdivisions (a) and (b) was adopted effective January 25, 2010. (Stats. 2010, ch. 28, § 27; Cal. Const., art. IV, § 8, subd. (c)(1).)
Defendant could be tried either for petty theft or a violation of section 537, subdivision (a)(1). The two offenses do not conflict. Both offenses permit conviction when food is taken and not paid for. When the food’s value is $950 or below, the offense is a misdemeanor under section 490 or 537, subdivision (a)(2). And the potential sentences for petty theft and a violation of section 537, subdivision (a)(1) are the same. Further, the general misdemeanor statute of limitations applies to both provisions when there is a taking of food. (§ 802, subd. (a).) There is no conflict in the elements, punishment or
statutes of limitations. Hence, as there is no conflict between the petty theft statute and section 537, subdivision (a), the
Williamson
rule is inapplicable.
(People
v.
Gilbert, supra,
1 Cal.3d at p. 481;
Bradwell v. Superior Court, supra,
156 Cal.App.4th at p. 271;
People
v.
Artis, supra,
20 Cal.App.4th at pp. 1025-1026;
Gasaway v. Superior Court, supra,
70 Cal.App.3d at pp. 547-548.)
We now return to the
Fiene
decision. As noted in
Fiene,
the
Williamson
conflict issue was not raised by the defendant.
(Fiene, supra,
226 Cal.App.2d at p. 307.) Rather, the Attorney General raised the
Williamson
issue in this sole context: “However, the Attorney General, with commendable objectivity, raises a much more serious question, one which is raised for the first time in these proceedings, and, one which, we believe, requires a reversal of the judgment. [][] The question presented is whether the existence of Penal Code, section 537 (the innkeeper statute), making it a misdemeanor to defraud an innkeeper, prevents the superior court from acquiring jurisdiction in this matter.”
(Fiene, supra,
226 Cal.App.2d at p. 307.) The Attorney General made a vague, generalized, nonfactually supported, legislative intent argument as to why the accused could be convicted of petty theft with a prior conviction.
(Id.
at p. 308.) At no time did the Attorney General argue section 537 was in conflict with the petty theft with a prior conviction statute.
Here, the Attorney General expressly raised the conflict issue. The language chosen by our Supreme Court in
Williamson
requires a conflict exist between the two offenses. And in the half-century since
Fiene
was decided, the California Supreme Court and the appellate courts have specifically delineated what the conflict language in
Williamson
means. Thus, we are more persuaded by those decisions as to what constitutes a conflict in the statutes than we are by the analysis in
Fiene, supra,
226 Cal.App.2d at pages 307-308. The trial court was thus free to sentence defendant for felony petty theft.
D.-G.
IV. DISPOSITION
The judgment as to count 3 is reversed. Upon remittitur issuance, count 3 is to be dismissed. The judgment is modified to impose four Penal Code section 1465.8, subdivision (a)(1) court operations assessments in the sum of $160. Further, the judgment is modified to impose only four Government Code
section 70373, subdivision (a)(1) court facilities assessments in the sum of $120. The abstract of judgment is to be so modified. In addition, the abstract of judgment must be amended to include the $10 local crime prevention programs fine (Pen. Code, § 1202.5, subd. (a)) together with penalties and a surcharge as ordered by the trial court, specifically a $10 state penalty (§ 1464, subd. (a)(1)); a $7 county penalty (Gov. Code, § 76000, subd. (a)(1)); a $5 state court construction penalty (Gov. Code, § 70372, subd. (a)(1)); a $1 deoxyribonucleic acid penalty (Gov. Code, § 76104.6, subd. (a)(1)); a $3 state-only deoxyribonucleic acid penalty (Gov. Code, § 76104.7, subd. (a)); a $2 emergency medical services penalty (Gov. Code, § 76000.5, subd. (a)(1)); and a $2 state surcharge (§ 1465.7, subd. (a)). The clerk of the superior court is to deliver a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.
Kriegler, J., and Mink, J.,
concurred.
Appellant’s petition for review by the Supreme Court was denied October 29, 2014, S220883.