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State v. Baker

Court of Appeals of Oregon

July 17, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
CLYDE BELDON BAKER, III, Defendant-Appellant.

          Argued and submitted October 19, 2018

          Umatilla County Circuit Court 16CR76176 Daniel J. Hill, Judge.

          Erik Blumenthal, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Christopher A. Perdue, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

         Case Summary:

         Defendant appeals a judgment of conviction for multiple crimes, raising several assignments of error. In his fourth assignment of error, defendant contends that the trial court erred in its application of ORS 137.717, the repeat property offender statute, when it sentenced him on two counts of first-degree theft, ORS 164.055, and one count of unauthorized use of a vehicle (UUV), ORS 164.135, by treating a prior conviction for shoplifting under California Penal Code section 459.5 as a "comparable offense" to second-degree burglary under ORS 164.215(1). In response, the state acknowledges that it is at least "unclear" whether shoplifting under California Penal Code section 459.5 and second-degree burglary under ORS 164.215 are comparable offenses. Nonetheless, the state asks that the judgment be affirmed, arguing as alternative bases to affirm that shoplifting under California Penal Code section 459.5 is a comparable offense to second-degree theft, ORS 164.045, or to attempted second-degree theft, ORS 164.045; ORS 161.405.

         Held:

         The trial court erred in treating shoplifting under California Penal Code section 459.5 as a comparable offense to second-degree [298 Or.App. 522] burglary under ORS 164.215, because the elements of the two offenses are not the same or nearly the same. The Court of Appeals further concluded that shoplifting under California Penal Code section 459.5 is not a comparable offense to second-degree theft or attempted second-degree theft.

         [298 Or.App. 523] AOYAGI, J.

         Defendant appeals a judgment of conviction for two counts of first-degree theft, ORS 164.055 (Counts 1 and 2); three counts of felon in possession of a firearm, ORS 166.270 (Counts 3, 4, and 5); one count of unauthorized use of a vehicle, ORS 164.135 (Count 6); and one count of possession of methamphetamine, ORS 475.894 (Count 8). We reject defendant's first three assignments of error, which challenge the admission of certain exhibits, without written discussion. We write only to address defendant's fourth assignment of error, regarding an alleged error that the trial court made in applying ORS 137.717 (2015), [1] the repeat property offender (RPO) statute, when sentencing defendant on Counts 1, 2, and 6. For the reasons that follow, we agree with defendant that the trial court erroneously treated his prior conviction for shoplifting under California Penal Code section 459.5 as a "comparable offense" to second-degree burglary under ORS 164.215. Accordingly, we remand for resentencing, and otherwise affirm.[2]

         We limit our discussion of ORS 137.717 to the portions relevant to this appeal. When a person is convicted of first-degree theft under ORS 164.055 or unauthorized use of a vehicle under ORS 164.135-as defendant was in this case-ORS l37.717(1)(b)(B) provides for a presumptive sentence of 18 months of incarceration if the person has "[t]wo or more previous convictions for any combination of the crimes listed in [ORS 137.717(2)]." ORS 137.717(2) lists 18 crimes under Oregon law, plus "[a]ny attempt to commit" any of those crimes. ORS 137.717(2Xs). Further, under ORS 137.717(3), the person's presumptive sentence of 18 months "shall be increased by two months for each previous conviction" of a crime listed in ORS 137.717(1) or (2), excluding the convictions "used as a predicate" for the 18-month presumptive sentence, and not to exceed a 12-month increase to the [298 Or.App. 524] presumptive sentence. Of critical relevance here, the definition of "previous conviction" includes "[c]onvictions entered in any other state or federal court for comparable offenses!' ORS 137.717(9)(b)(B) (emphasis added).

         As relevant to this appeal, defendant was convicted of two counts of first-degree theft and one count of unauthorized use of a vehicle. For all three convictions, the state asked that he be sentenced as a repeat property offender under ORS 137.717, citing three prior convictions in California. The trial court agreed and sentenced defendant to 20 months each on Counts 1, 2, and 6. That is, for each count, the court relied on two of defendant's California convictions to impose a presumptive sentence of 18 months under ORS 137.7 17(1)(b)(B), and it relied on the third California conviction to increase his sentence by two months under ORS 137.717(3).

         On appeal, defendant concedes that two of his prior California convictions are comparable offenses to crimes listed in ORS 137.717(1) or (2), such that he was subject to a presumptive 18-month sentence under ORS 137.717 (1)(b)(B). However, consistent with his arguments below, defendant argues that the trial court erred in concluding that his third California conviction-for misdemeanor shoplifting under California Penal Code section 459.5-is a comparable offense to second-degree burglary under ORS 164.215. Consequently, defendant argues, the court erred in increasing his sentences on Counts 1, 2, and 6 by two months, i.e., from 18 to 20 months. In response, the state essentially concedes that the trial court erred in treating defendant's California conviction as comparable to second-degree burglary under ORS 164.215. The state acknowledges a "problem" with that treatment given differences between the two statutes (differences that we discuss later), states that it is "unclear under controlling case law whether the two offenses are comparable," and makes no argument that they are comparable. The state asserts that we ...


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