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Court of Appeal, First District, Division 3, California.

The PEOPLE, Plaintiff and Respondent, v. Kermit Vargas CRUZ, Defendant and Appellant.

The PEOPLE, Plaintiff and Respondent, v. Kermit Vargas CRUZ, Defendant and Appellant.

Nos. A063965, A063966.

Decided: March 16, 1995

David Y. Stanley, Executive Director, First District Appellate Project, Roger A. Stoll, Staff Atty., San Francisco, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Ronald E. Niver, Supervising Deputy Atty. Gen., Bruce Ortega, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

Kermit Vargas Cruz appeals after the trial court sentenced him to a prison term of twelve years and eight months for five felonies and three sentence enhancements.1  On appeal, he challenges only the five-year sentence enhancement imposed under Penal Code section 667, subdivision (a).2  Appellant contends that the evidence is insufficient to establish that he previously had been convicted of a serious felony within the meaning of sections 667, subdivision (a), and 1192.7, subdivision (c)(18).   He also contends that the trial court failed to instruct the jury fully on the elements necessary for the prior conviction sentence enhancement.

We conclude that the evidence failed to prove that appellant's prior conviction of first degree burglary involved the type of residence specified by section 1192.7, subdivision (c)(18).   Accordingly, we must vacate the five-year enhancement imposed under section 667, subdivision (a).   We remand the case for resentencing.


The indictment against appellant alleged, pursuant to section 667, subdivision (a), that “on or about Jamuary [sic] 31, 1992, in the Superior Court of the State of California, in and for the County of Contra Costa, [appellant] was convicted of the crime of First Degree Burglary, a serious felony as defined in Penal Code section 1192.7 [, subdivision] (c).”   At the trial of this allegation, the following evidence was introduced.3

The prosecution's primary evidence consisted of certain certified court records from appellant's prior conviction.   The records, all of which were dated January 31, 1992, included an order for probation, the clerk's minutes for appellant's plea of guilty, and an abstract of judgment showing the conviction and sentence choice of probation made following appellant's plea.   The records showed that appellant was convicted after he pleaded guilty to violating sections 459 and 460, former subdivision 1 (now subdivision (a)), as was set forth in the prior information, and described the offense as “First Degree Burglary–Residential.”   Neither the prior information nor the preliminary hearing transcript from the burglary charge were offered in evidence.   The only other evidence offered at the trial was the testimony of the probation officer assigned to appellant.   The probation officer identified appellant as the person referred to in the probation order.


 Section 667, subdivision (a)(1), provides that a defendant convicted of a “serious felony” shall receive an additional five-year sentence for each prior conviction of a “serious felony” that was charged and tried separately.  (§ 667, subd. (a)(1).)   As used in section 667, “ ‘serious felony’ means a serious felony listed in subdivision (c) of Section 1192.7.”  (§ 667, subd. (a)(4).)   Appellant contends the evidence was insufficient to support the finding that his prior conviction was for a serious felony under section 1192.7, subdivision (c)(18).   That section defines only the following burglaries as serious felonies:  “burglary of an inhabited dwelling house, or trailer coach as defined by the Vehicle Code, or inhabited portion of any other building․”  (§ 1192.7, subd. (c)(18).)

When appellant pleaded guilty to first degree burglary, section 460, subdivision (a), provided:  “(a) Every burglary of an inhabited dwelling house, vessel, as defined in the Harbors and Navigation Code, which is inhabited and designed for habitation, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, or trailer coach, as defined by the Vehicle Code, or the inhabited portion of any other building, is burglary of the first degree.”  (§ 460, subd. (a), italics added.) 4

 An enhanced sentence term cannot be imposed without proof of each fact it requires.  (People v. Hernandez (1988) 46 Cal.3d 194, 208, 249 Cal.Rptr. 850, 757 P.2d 1013.)   Appellant contends that because the prosecutor never presented evidence of what kind of residential burglary occurred, it conceivably could have been a burglary of an inhabited vessel.   Neither burglary of an inhabited vessel nor burglary of a floating home are among the serious felonies listed by section 1192.7, subdivision (c)(18).   As a result, appellant argues that the evidence did not establish that his prior burglary conviction was one for which an enhanced sentence is available under section 667, subdivisions (a)(1) and (a)(4), and section 1192.7, subdivision (c)(18).

 Respondent attempts to counter this argument by relying on People v. Harrell (1989) 207 Cal.App.3d 1439, 1445, 255 Cal.Rptr. 750, and subsequent cases, for the proposition that the terms “residence” and “inhabited dwelling house” are equivalent.5  Respondent also cites People v. Buyle (1937) 22 Cal.App.2d 143, 148–149, 70 P.2d 955, to assert that a house, as referred to in burglary statutes, is any structure with walls on all sides, covered by a roof, designed for habitation by and capable of containing people.   From this respondent concludes that vessels designed for habitation and floating homes constitute inhabited dwelling houses or inhabited buildings.   As a result, respondent contends that even if appellant's prior burglary was of an inhabited vessel, it had to be a serious felony.   The obvious problem with respondent's analysis, which respondent concedes, is that this interpretation makes redundant the inclusion of vessels and floating homes in the first degree burglary statute;  the Legislature's words become mere surplusage.   It is axiomatic that we must avoid the construction of a statute that renders terms mere surplusage.  (City and County of San Francisco v. Farrell (1982) 32 Cal.3d 47, 54, 184 Cal.Rptr. 713, 648 P.2d 935;  People v. Brookins (1989) 215 Cal.App.3d 1297, 1309, 264 Cal.Rptr. 240.)

If section 460, subdivision (a), and section 1192.7, subdivision (c)(18), are to describe the same burglary targets, it cannot come about by a judicial pronouncement that inhabited dwelling houses and buildings are indistinguishable from floating homes and vessels designed for habitation.   Instead, the Legislature must amend one or both of the statutes so that their plain language evidences an intent that the provisions correspond to each other.

During the period relevant to this appeal and extending to the present, section 460, subdivision (a), specified forms of burglary not included in section 1192.7, subdivision (c)(18), and therefore not subject to sentence enhancement under section 667, subdivision (a).  (Cf. People v. Myers (1993) 5 Cal.4th 1193, 1199–1201, 22 Cal.Rptr.2d 911, 858 P.2d 301;  People v. Guerrero (1988) 44 Cal.3d 343, 346–348, 243 Cal.Rptr. 688, 748 P.2d 1150.)   Consequently, in order to prove that a prior burglary conviction was a serious felony for which a five-year sentence enhancement can be imposed, it is incumbent on the prosecution to offer competent evidence that the burglary was of “an inhabited dwelling house, or trailer coach as defined by the Vehicle Code, or inhabited portion of any other building․”  (§ 1192.7, subd. (c)(18).)

Here the evidence failed to show that appellant's prior conviction was for a burglary of one of the residences specified by section 1192.7, subd. (c)(18).   Accordingly, the evidence failed to establish that his prior conviction satisfied the criteria for an enhanced sentence under section 667, subdivision (a);  the five-year sentence enhancement imposed under that section must be vacated.  (Cf. People v. Brookins, supra, 215 Cal.App.3d at pp. 1308–1309, 264 Cal.Rptr. 240.)   Because we vacate the sentence enhancement as a result of insufficient evidence to support it, retrial is precluded.  (Id. at p. 1309, 264 Cal.Rptr. 240.)

The trial court imposed the five-year sentence enhancement as a consecutive sentence;  therefore, we remand the case to allow the trial court to reconsider its entire sentencing scheme.  (People v. Burns (1984) 158 Cal.App.3d 1178, 1183–1184, 205 Cal.Rptr. 356.)   Of course, the sentence imposed on remand may not exceed the original sentence.  (Id. at p. 1184, 205 Cal.Rptr. 356.)


The five-year sentence enhancement imposed under section 667, subdivision (a), is vacated.   The case is remanded to the trial court for resentencing.


1.   A jury convicted appellant of two counts of second degree robbery (Pen.Code, §§ 211, 212.5, former subd. (b) [now subd. (c) ] ), one count of escape from custody for a felony (Pen.Code, § 4532, subd. (b)), and one count of being a felon in possession of a firearm (Pen.Code, § 12021, subd. (a)).  The jury also found to be true the sentence enhancement allegations that appellant personally used a firearm in committing the robberies.  (Pen.Code, § 12022.5, subd. (a).)  A second jury found that appellant had suffered a prior serious felony conviction.  (Pen.Code, § 667, subd. (a).)  Appellant previously had been convicted of first degree burglary (Pen.Code, §§ 459, 460, subd. (a)), for which he received a concurrent sentence at the time he was sentenced on the other charges.

2.   Unless otherwise indicated, all further statutory references are to the Penal Code.

3.   Appellant's jury trial on the prior serious felony conviction allegation was bifurcated from the trial on the other charges.

4.   Section 460, subdivision (a), was amended effective January 1, 1992, 30 days before appellant pleaded guilty.   The amendment redesignated former subdivisions 1 through 3 as subdivisions (a) through (c), and added the reference to floating homes.  (Stats.1991, ch. 942, § 15, No. 8 West's Cal.Legis.Service, p. 3748.)   Prior to the amendment, and presumably at the time of appellant's offense, former subdivision 1 provided:  “1.   Every burglary of an inhabited dwelling house, vessel, as defined in the Harbors and Navigation Code, which is inhabited and designed for habitation, or trailer coach, as defined by the Vehicle Code, or the inhabited portion of any other building, is burglary of the first degree.”  (Stats.1989, ch. 357, § 3, pp. 1475–1476, italics added.)

5.   Of course, “residential” logically can apply as well to a floating home or a vessel designed for habitation.  “[R]esidential” means in this sense, “2.   Of, suitable for, or limited to residences.”   (American Heritage Dict. (1981) p. 1106, col. 2.)  “[R]esidence,” in this context, means “1.   The place in which one lives;  a dwelling;  an abode.”  (Id. at p. 1106, col. 1.)   Thus, a residential burglary is a burglary of something suitable for an abode and can include dwellings on land or water.

CHIN, Presiding Justice.

MERRILL and CORRIGAN, JJ., concur.