PEOPLE v. HASKINS

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Court of Appeal, Second District, Division 6, California.

The PEOPLE, Plaintiff and Respondent, v. Lawrence Paul HASKINS, Defendant and Appellant.

No. B063365.

Decided: November 17, 1992

Lauri K. Brown, Ventura, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen.;   George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Senior Asst. Atty. Gen., David F. Glassman, Deputy Atty. Gen., for plaintiff and respondent.

A defendant convicted of residential burglary, “a serious felony” (Pen.Code, §§ 667, subd. (a), 1192.7, subd. (c)(18)), shall receive a five year prison enhancement if he has been previously convicted of a residential burglary or any other “serious felony.”   The People must prove the residential nature of the prior burglary beyond a reasonable doubt.   Where, as here, the sole proof of the residential nature of the prior is a felony complaint which recites that the defendant entered a “condominium” with the intent to commit theft, the evidence is insufficient as a matter of law.

Lawrence Paul Haskins appeals from the judgment entered upon his pleas of no contest to two counts of residential burglary (Pen.Code, § 459) and findings by the court of four prior serious felony convictions (Pen.Code, § 667, subd. (a)).  The total aggragate unstayed prison term imposed was 27 years, 4 months.   He contends:  “[I.] The record is insufficient to prove ․ [three of the] priors for purposes of the 667 enhancements and those enhancements should be stricken.  [II.] The prior which alleged burglary of a condominium should be stricken for an additional reason.”

After pleading no contest to the two residential burglaries, appellant waived jury trial on the issue of five prior serious felony conviction allegations and submitted the matter to the court.   Only three of the priors are challenged on appeal.

The prosecutor submitted certified documents for each prior conviction.   People's exhibit 6, offered as to a conviction of second degree burglary which occurred in 1980, included a felony complaint charging appellant with four counts of burglary, including the allegation that he entered “the house and building occupied by Brian John Almond, with the intent to commit larceny,” and a minute order and an abstract of judgment indicating a plea of no contest to four counts of second degree burglary.

People's exhibit 7, offered as to a conviction of second degree burglary which occurred in 1979, included a felony complaint charging appellant with entry of “the apartment of Michael Middleton located at 3857 Ocean Drive, Apt. 7 ․ with intent to commit theft” and an abstract of judgment indicating a plea to second degree burglary.

People's exhibit 8, offered as to a conviction of second degree burglary which occurred in 1978, included a felony complaint charging appellant with entry of “the condominium of Robert Eugene Johnson located at 1154 Acadia, Ventura, California with intent to commit theft” and a minute order indicating a plea of no contest to second degree burglary.

In the trial court, appellant argued that People's exhibit 8 did not establish a prior serious felony.   Defense counsel said:  “What the Complaint says is he entered a condominium.  Civil Code Section 783 tells us that a condominium is an undivided interest, common in portions, of a parcel of real property, together with a separate interest in a space in residential, industrial and/or commercial building on such real property, such as an apartment, office or store.”   The trial court found this prior serious felony allegation true, observing, “[i]f this was a business condominium, it wouldn't have been pled like this.”   The trial court found the prior serious felony allegations supported by exhibits 6, 7 and 8 true beyond a reasonable doubt.

 The contention that the evidence was insufficient to prove that the 1979 and 1980 burglary convictions were serious felonies is without merit.   The felony complaints in exhibits 6 and 7 offered in support of those allegations, each charged appellant with “the crime of violation of section 459 of the Penal Code” by entering a house and an apartment respectively.   The minute orders or abstracts of judgment indicate pleas to the charged offenses.   Sitting as trier of fact, the trial court reasonably drew the inferences that the “house” and the “apartment” of the named individuals were their “residences.”  (People v. Johnson (1989) 208 Cal.App.3d 19, 28, 256 Cal.Rptr. 16.)   Appellant has not demonstrated, as a matter of law, that this evidence is insufficient to show that they were not “serious felonies.”

 The 1978 burglary of a “condominium” is altogether different.   We are compelled to conclude that this prior must be stricken.   The sole proof of this prior consists of five pages of court documents.   Absent was the probation report (People v. Skeirik (1991) 229 Cal.App.3d 444, 462, 280 Cal.Rptr. 175) or preliminary hearing transcript (People v. Goodner (1990) 226 Cal.App.3d 609, 616, 276 Cal.Rptr. 542) or any other portion “․ of the entire record of the conviction․”  (People v. Guerrero (1988) 44 Cal.3d 343, 355, 748 P.2d 1150) which would show whether the subject condominium was residential or not.

The trial court's remarks concerning how the burglary would have been plead in 1978 if it had been something other than a residential condominium is simple speculation.   It may be that, in fact, the condominium was Mr. Johnson's residence.   However, the People simply failed to prove this allegation.   The single word, “condominium” is insufficient as a matter of law to prove residential burglary beyond a reasonable doubt.  (People v. Jackson (1992) 7 Cal.App.4th 1367, 1372, 10 Cal.Rptr.2d 5.)   This single word, which encompasses more than a residence, is not evidence “ ‘of ponderable legal significance ․ reasonable in nature, credible, and of solid value.’   [Citations.]”  (People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal.Rptr. 431, 606 P.2d 738.)

Contrary to the People's position at oral argument, a “condominium” is not necessarily a specific form of a residence.   We are not permitted to use a layperson's definition of the word, “condominium” in deciding the legal sufficiency of proof which results in a five-year prison term.

A “condominium is an estate in real property described in subdivision (f) of Section 1351.”  (Civ.Code, § 783.)  “A condominium consists of an undivided interest in common in a portion of real property coupled with a separate interest in a space called a unit, the boundaries of which are described on a recorded final map, parcel map, or condominium plan in sufficient detail to locate all the boundaries thereof.”  (Civ.Code, § 1351, subd. (f).)  The word, residence, is conspicuously absent from the legal definition of a “condominium.”

The result we reach is compelled by the legal definition of the word “condominium.”   If, in fact, the condominium was a residence, and any portion of the record of the conviction would so show, appellant has received a windfall because the constable's attorney has blundered.  (People v. Defore (1926) 242 N.Y. 13, 21, 150 N.E. 585, 587.)   If, in fact, the condominium was not a residence, we have corrected a five-year miscarriage of justice.

The August 7, 1978 prior (Ventura County Super.Ct. No. CR13952) is stricken.   The judgment is modified to delete the five-year enhancement based thereon leaving an aggregate unstayed term of 22 years 4 months.   In all other respects the judgment is affirmed.

YEGAN, Associate Justice.

STONE, P.J., and GILBERT, J., concur.