P. v. Samples 11/7/02 CA4/1

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: D039196

Case Date: 12/06/2002

Preview:Filed 11/7/02; pub. order 12/6/02

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Appellant, v. KENNETH MARVIN SAMPLES, Defendant and Respondent.

D039196

(Super. Ct. No. SCD156807)

APPEAL from an order of the Superior Court of San Diego County, Ronald L. Styn, Judge. Appeal dismissed.

In an information filed in June 2001, the San Diego District Attorney charged the defendant Kenneth Marvin Samples with commercial burglary under Penal Code1 section 459 (count 1) and with petty theft under section 484 (count 2). The information also alleged as a strike within the meaning of sections 667, subdivisions (b) through (i), 1170.12, and 668 that Samples had been convicted in the State of Texas in February 1993 of the crime of burglary of a habitation. Samples pleaded guilty to count 1 and admitted

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All further statutory references are to the Penal Code.

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to having pleaded guilty to the Texas burglary charge, and in exchange count 2 was dismissed. However, Samples reserved the right to argue at sentencing that the Texas conviction did not constitute a strike under California's three strikes law. In October 2001, the court ruled that Sample's Texas conviction did not constitute a strike under California law because of what the court believed were differences between the intent elements in California's and Texas's theft statutes. Having found not true Sample's strike allegation, the court placed him on three years' formal probation, with 365 days in local custody, and ordered $400 in restitution. In November 2001, the People appealed from the "unlawful order" determining the Texas conviction did not constitute a strike and the resulting "unlawful sentence." Citing the California Supreme Court's recent decision in People v. Avery (2002) 27 Cal.4th 49 (Avery), the People assert that the court erred in concluding that Sample's Texas conviction could not be considered a strike under California law. Samples, in addition to contesting this appeal on the merits, argues in both his brief and in a separate motion that the People's appeal must be dismissed because the People are prohibited by statute from bringing this appeal as it is not authorized by statute and seeks to set aside the court's grant of probation. We conclude that the People's appeal must be dismissed because it is not explicitly authorized by statute. We also conclude that the appeal must be dismissed because the People, while claiming for the first time in their reply brief that they are only challenging the order finding not true the prior conviction allegation, are actually attempting to set

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aside the probation granted by the court, and thus they are prohibited by statute from bringing this appeal. Accordingly, the People's appeal is dismissed. FACTUAL AND PROCEDURAL BACKGROUND A. The Current Offense2 On November 24, 2000, Samples and a juvenile female named Ashly B. entered a Wal-Mart store, selected a vacuum cleaner from its display and brought it to a customer service desk. They represented that they had previously purchased the vacuum and were seeking to return it. The service representative gave Samples a store credit of $288.62, and Samples and Ashly B. left the store. Once outside, a security officer detained Samples and Ashly B. until police arrived, at which point they were taken into custody. B. The Plea Agreement In August 2001, Samples pleaded guilty to count 1 (second degree burglary) and admitted the prior conviction allegation. The remainder of the information was stricken. However, although Samples admitted the fact of the Texas conviction, he reserved the right to litigate "the legal issue of whether a burglary of a habitation . . . in Texas qualifies as a strike in California . . . at sentencing." C. Sentencing At the October 2001 sentencing hearing, the court held that Sample's February 1993 Texas burglary conviction did not constitute a strike under California law. The

2 Because this matter was resolved by a plea agreement, we take the factual background from the probation report in this matter.

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court, in making this ruling, found that under the applicable Texas statute, a defendant could be convicted of burglary when he or she had the intent to withhold property from the owner for so extended a period of time that a major portion of the value or enjoyment of the property is lost to the owner. (See Tex. Pen. Code,

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