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Name: People v. Avery
Case #: A085733
Court: CA Court of Appeal
District 1 DCA
Division: 4
Opinion Date: 09/22/2000
Subsequent History: Review Granted January 10, 2001 (S092426)

The Court of Appeal reversed findings in a court trial that a Texas prior conviction for burglary constituted a prior strike and a prior serious felony. Under People v. Myers (1993) 5 Cal.App.4th 1193, 1200, a prior conviction from another jurisdiction qualifies as a serious felony prior only if it includes all of the elements of a prior conviction, as defined under Penal Code section 667, subdivision (d)(2). At trial on the priors, the People only offered the Texas indictment and judgment. The Texas indictment charged “…burglary of a habitation with the intent to commit theft.” In Texas, theft is defined as taking property permanently or temporarily “for so extended a period of time that a major portion of the value or enjoyment of the property is lost to the owner….” (Tex. Pen. Code, sec. 31.01, subd. (2)(A).) But the California theft statute, Penal Code section 484, penalizes only an intent to permanently deprive. As thefts under Texas law do not always constitute thefts in California, it follows that not all Texas residential burglaries qualify as serious felony priors. Accordingly, the prior was not proven in this case. The defendant received ineffective assistance of counsel when his attorney failed to argue the failure of proof to the trial court. The matter was remanded for retrial under Monge v. California (1998) 524 U.S. 721, 734.