PEOPLE v. HEARN

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Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Respondent, v. Richard Allen HEARN, Defendant and Appellant.

No. C021913.

Decided: December 05, 1996

William J. Schmidt, Sacramento, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, J. Robert Jibson, Supervising Deputy Attorney General, Mark A. Johnson, Deputy Attorney General, for Plaintiff and Respondent.

A jury convicted defendant of possession of a controlled substance (Health & Saf.Code, § 11350, subd. (a)) and possession of a hypodermic needle or syringe.  (Bus. & Prof.Code, § 4149.)   In a bench trial, the trial court found true allegations defendant had been convicted of burglary, a serious felony (Pen.Code, § 1170.12, subd. (b)(1)) and had served two prison terms (Pen.Code, § 667.5, subd. (b);  further statutory references to sections of an undesignated code are to the Penal Code).

Sentenced to state prison for eight years defendant appeals, contending the evidence is insufficient to support the finding he had been convicted of a serious felony.   Defendant also claims the trial court erred in imposing the upper term.   We agree with defendant's first contention and shall reverse the finding of serious felony conviction.

I

The information alleged, pursuant to section 1170.12, that on December 18, 1981, defendant had been convicted in Santa Clara County Superior Court of burglary, a serious felony.   The information also alleged, pursuant to section 667.5, subdivision (b), that on February 22, 1982, defendant had been convicted in Santa Clara County Superior Court of first degree burglary for which he served a separate prison term.   The information further alleged, pursuant to section 667.5, subdivision (b), that on March 5, 1990, defendant had been convicted of receiving stolen property for which he served a separate prison term.

At the court trial on the special allegations, the prosecution introduced prison records (§ 969b) showing that, on February 22, 1982, defendant had been convicted of first degree burglary, committed to prison and discharged from that commitment on January 7, 1989, and that on March 5, 1990, defendant had been convicted of receiving stolen property, committed to prison and discharged from that commitment on February 27, 1995.   The prosecution did not offer evidence that defendant had been convicted on December 18, 1981, of a serious felony, to wit burglary, as alleged in the information.

As indicated, prison records were received which proved defendant had been convicted of first degree burglary on February 22, 1982.   Although this conviction was alleged in the information as a prior prison term, the court apparently based its finding sustaining the allegation of serious felony conviction on this evidence.   No evidence was adduced of the date when defendant committed the burglary of which he was convicted on February 22, 1982.

Defendant contends the evidence is insufficient to support a finding that he had been convicted of burglary, a serious felony, on December 18, 1981, because no evidence of any conviction on that date was adduced.   The People respond that the February 22, 1982, conviction of first degree burglary, which was proved at trial, qualifies as a serious felony under section 1192.7, subdivision (c)(18), and supports the court's finding of serious felony conviction and imposition of enhanced sentence under section 1170.12, subdivision (c)(1).   Defendant argues that the 1982 conviction does not so qualify because under the statutory definition of first degree burglary in effect at the time of conviction in 1982, that degree of burglary could be committed in other ways than by burglarizing an inhabited dwelling or inhabited portion of any other building, which is the only kind of burglary which qualifies as a serious felony under section 1192.7, subdivision (c)(18).

Though off the mark, defendant's argument prefigures a legitimate issue, i.e., whether the statutory definition of first degree burglary at the time the crime was committed is coterminous with the definition of serious felony in section 1192.7, subdivision (c)(18).   Raised in the context of the burglary statute in effect in 1982, the argument avails defendant nothing, because the record does not disclose when defendant committed the first degree burglary of which he was convicted in 1982.   In any event, if the burglary were committed in 1982, a fact not established on the record, defendant would not benefit because the version of section 460 in effect in 1982 is congruent in its definition of first degree burglary in all relevant respects with section 1192.7, subdivision (c)(18).1

The “Three Strikes” law (§§ 667, subds. (b)–(i);  1170.12) provides for the doubling of a prison term when a defendant has one serious felony conviction that has been pleaded and proved. (§ 667, subds.(b), (e)(1);  § 1170.12, subds. (c)(1).)  “[B]urglary of an inhabited dwelling house, or trailer coach as defined by the Vehicle Code, or inhabited portion of any other building” is a serious felony. (§ 1192.7, subd. (c)(18).)  “The determination of whether a prior conviction is a prior [serious] felony conviction for purposes of this section shall be made upon the date of that prior conviction․” (§§ 667, subd. (d)(1);  1170.12, subd.(b)(1);  see People v. Green (1995) 36 Cal.App.4th 280, 283, 42 Cal.Rptr.2d 249;  People v. Reed (1995) 33 Cal.App.4th 1608, 1611, 40 Cal.Rptr.2d 47.)

 For present purposes, we shall assume the court did not err in relying on the evidence of the February 1982 conviction to sustain the charge of serious felony conviction which the information alleged as a burglary conviction suffered in December 1981.   So assuming, we still cannot uphold the finding.   The difficulty is the absence of any evidence of the date when defendant committed the burglary for which he was convicted in 1982.   Absent that evidence, it is impossible to know which version of the burglary statute applied to defendant's crime, since it is the statute in effect when the burglary is committed that governs.  (See People v. Smith (1983) 34 Cal.3d 251, 263, 193 Cal.Rptr. 692, 667 P.2d 149;  People v. Teron (1979) 23 Cal.3d 103, 119, 151 Cal.Rptr. 633, 588 P.2d 773.)

The statutory definition of first degree burglary has been particularly protean.   Its pre–1979 incarnations are not congruent with the definition of serious felony in section 1192.7, subdivision (c)(18).   Thus prior to January 1, 1979, the effective date of the 1978 amendment to section 460 (Stats.1978, ch. 579), first degree burglary could be committed, inter alia, by burglarious entry of an inhabited building (in the night time).2  The 1978 amendment narrowed the statute so that to constitute burglarious entry of an inhabited building a burglary of the first degree, the entry must be of the inhabited portion of such building.   Thus, under the 1978 amendment, burglarious entry into, e.g., a warehouse, one room in which is inhabited by an attendant, is not first degree burglary if the burglar does not enter the inhabited portion of the building.   Before the 1978 amendment, mere burglarious entry into the uninhabited portion of an inhabited building was first degree burglary.

On this record we have no way of knowing whether the 1982 burglary conviction was for a burglary committed prior to January 1, 1979, the effective date of the 1978 amendment.   All we can say is that we cannot rule it out.3  Thus, proof defendant suffered a conviction of first degree burglary in 1982, without more, is not a surrogate for proof that the crime is a serious felony as defined in section 1192.7, subdivision (c)(18).

Proving a strike under the three strikes law, i.e., a prior conviction of a serious or violent felony, is not as simple as proving a prior conviction of a generic felony or service of a prior prison term.   Depending on how the relevant serious or violent felony is defined (§§ 1192.7, subd. (c);  667.5, subd. (c)), the proof may require more than a “section 969b” package from the Director of Corrections.   It must be proved either that defendant was convicted of a felony the definition of which is congruent with that of the relevant serious or violent felony as defined respectively in section 1192.7, subdivision (c) and section 667.5, subdivision (c), or that defendant's conduct in committing that felony is congruent therewith.   Since statutory definitions of crimes and degrees of crime change, a prosecutor who, as here, relies on proof of a first degree burglary conviction to support an allegation of serious felony conviction must further prove the conviction was under a version of section 460 which coincides with the definition of serious felony in section 1192.7, subdivision (c)(18).

II

Defendant claims the trial court erred in imposing the upper term for possession of a controlled substance.   According to defendant, “it appears” the court relied on one or more of his prior convictions, which also were charged as enhancements, as an aggravating factor at sentencing.   Relying on People v. Piceno (1987) 195 Cal.App.3d 1353, 241 Cal.Rptr. 391, defendant asserts his remaining convictions either are too old or not serious enough to justify the upper term.   Defendant also argues “there is a significant likelihood that a remand for resentencing would result in a lower term.”

 In imposing the upper term, the trial court relied on defendant's record.   That record consists of seven convictions other than the prior convictions which were used as enhancements.   All but one are drug-related misdemeanors.   The remaining felony is a 1986 conviction of petty theft with a prior theft-related conviction.   The probation report had recommended the middle term.

Defendant is correct that it would be improper to use an enhancement to impose the upper term. (§ 1170, subd. (b);  Cal. Rules of Court, rule 420(c).)  But the record does not support his claim that the court did so.   The only time the court mentioned one of the enhancements, other than when it imposed sentence for them, was in preliminary remarks before argument by the parties.

People v. Piceno, supra, 195 Cal.App.3d 1353, 241 Cal.Rptr. 391, does not assist defendant.   There, the court held a juvenile record consisting of either stale or minor offenses could not support the upper term.  (People v. Piceno, supra, 195 Cal.App.3d at pp. 1360–1361, 241 Cal.Rptr. 391.)   Here, defendant has an extensive adult record of criminal activity.

 The trial court has ample discretion in considering aggravating and mitigating circumstances.  (People v. Evans (1983) 141 Cal.App.3d 1019, 1022, 190 Cal.Rptr. 633.)   A single circumstance in aggravation is sufficient to justify the upper term.  (People v. Dreas (1984) 153 Cal.App.3d 623, 636, 200 Cal.Rptr. 586.)   In relying on defendant's numerous prior convictions (Cal. Rules of Court, rule 421(b)(2)), in imposing the upper term, we presume the court did not rely on the convictions used as enhancements.  (Evid.Code, § 664.)   There was no abuse of discretion.  (People v. Ramos (1980) 106 Cal.App.3d 591, 601, 609, 165 Cal.Rptr. 179.)

The convictions and findings of service of two prior prison terms are affirmed.   The finding that defendant suffered a prior serious felony conviction is reversed.   The sentence is vacated and the matter remanded to the trial court for further proceedings and imposition of sentence.4

FOOTNOTES

1.   As it read in 1982, section 460 defined first degree burglary as follows:  “Every burglary of an inhabited dwelling house or trailer coach as defined by the Vehicle Code, or the inhabited portion of any other building committed in the nighttime, is burglary of the first degree.”   (Stats.1978, ch. 579, § 23, p. 1985.)Section 1192.7 provides in relevant part: .    .    .    .    .“(c) As used in this section, ‘serious felony’ means any of the following:  ․ (18) burglary of an inhabited dwelling house, or trailer coach as defined by the Vehicle Code, or inhabited portion of any other building․”

2.   Before its 1978 amendment, section 460 provided:  “Every burglary of an inhabited dwelling house, trailer coach as defined by the Vehicle Code, or building committed in the nighttime, is burglary of the first degree.”  (Stats.1976, ch. 1139, § 206.5, p. 5120, operative July 1, 1977.)

3.   Nor can we say that the 1982 burglary conviction was not for a burglary committed prior to July 1, 1977, the operative date of the 1976 amendment to section 460.  (Stats.1976, ch. 1139, § 206.5, p. 5120.)   Before the 1976 amendment took effect, section 460 defined first degree burglary even more broadly:  “Every burglary of an inhabited dwelling house, trailer coach as defined by the Vehicle Code, or building committed in the nighttime, and every burglary, whether in the daytime or nighttime, committed by a person armed with a deadly weapon, or who while in the commission of such burglary arms himself with a deadly weapon, or who while in the commission of such burglary assaults any person, is burglary of the first degree.”  (Stats.1955, ch. 941, § 1, p. 1827.)   At that time, the period of limitations for burglary was three years from its commission within which time an indictment must be found, an information filed or the case certified to the superior court.  (Former § 800.)

4.   The abstract of judgment states incorrectly the prior prison term enhancements were found pursuant to section “667(b).”   The abstract prepared after resentencing should cite to section 667.5, subdivision (b) as authority for the prior prison term enhancements.

PUGLIA, Presiding Justice.

BLEASE and SIMS, JJ., concur.