PEOPLE v. VINDIOLA

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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Richard Neri VINDIOLA, Defendant and Appellant.

No. F020792.

Decided: August 30, 1995

Gregory Marshall, under appointment by the Court of Appeal, Ramona, for defendant and appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, Margaret Garnand Venturi and Edmund D. McMurray, Deputy Attorneys General, for plaintiff and respondent.

OPINION

INTRODUCTION

In the published portion of this opinion we address the issue of the admissibility, in the face of a hearsay objection, of various items of evidence offered by the People to prove that appellant had previously been convicted of the prior serious felony of burglary of an inhabited dwelling house (Pen.Code, §§ 1192.7, subd. (c), 667, subd. (a)), or so-called “residential burglary.” 1

STATEMENT OF THE CASE

A jury found appellant guilty of one count of burglary of an inhabited dwelling (Pen.Code, § 459).   Allegations of six prior convictions were bifurcated and were to be tried to the court without a jury.   Appellant admitted four of the six alleged prior convictions, but denied that two alleged prior residential burglaries had been “residential.”   The court, at the request of the prosecutor, took judicial notice of various documents, and then found true the allegations that appellant had been convicted of residential burglary in 1966 and again in 1971.

Appellant was sentenced to a total of twenty-one years.   Ten years of the twenty-one-year sentence were attributable to the two section 667, subdivision (a) five-year enhancements imposed for the two prior residential burglaries.   The court also ordered appellant to pay a restitution fine of $2,000 pursuant to Government Code section 13967.

APPELLANT'S CONTENTIONS

Appellant raises two issues on this appeal.   First, he contends that the court's “true” findings on the allegations that appellant's 1966 and 1971 burglaries were “residential” must be stricken because those findings were “based on documents that constituted inadmissible hearsay.”   Second, he contends the court erred in imposing a $2,000 restitution fine because the court failed to give any consideration to appellant's ability to pay the fine.

FACTS

The facts which gave rise to appellant's most recent burglary conviction are not pertinent to the issues raised by appellant on this appeal and may be briefly summarized.   The victim's next door neighbor came home at about 12:45 p.m. on June 15, 1993, and saw appellant coming away from the victim's front door and carrying a television set.   The neighbor called the police.   Appellant was apprehended shortly thereafter while riding in a car about a half mile away from the burglary scene.

Of greater interest to us on this appeal are the facts pertaining to the manner in which the People attempted to prove that appellant's 1966 and 1971 burglary convictions were for residential burglaries.   To those facts we now turn.

The amended information alleged, as appellant's fifth prior conviction, that appellant “was convicted of a serious felony, to wit:  Residential Burglary, in violation of Penal Code Section 459 in Fresno County Superior Court No. 25257, on or about June 29, 1971, within the meaning of Penal Code Sections 667(a) and 1192.7(c).”

The amended information alleged, as appellant's sixth prior conviction, that appellant “was convicted of a serious felony, to wit:  Residential Burglary, in violation of Penal Code Section 459 in Fresno County Superior Court No. 21673, on or about August 18, 1966, within the meaning of Penal Code Sections 667(a) and 1192.7(c).”

Appellant admitted that he was convicted of a crime on June 19, 1971, in case No. 25257 and that he was convicted of a crime on August 18, 1966, in case No. 21673, but denied that he was convicted of “Residential Burglary” as alleged in the amended information.

The prosecutor attempted to prove that the 1971 conviction was for residential burglary by asking the court to take judicial notice of the court's own file in case No. 25257, and particularly four items contained in that file.   These four items were a probation report, a certification of the Magistrate, a complaint and a District Attorney's letter.   The prosecutor also asked the court to take judicial notice of a probation report found in the court file of Fresno Superior Court case No. 27936, a case in which appellant had been convicted of forgery in 1974.   The prosecutor argued that these items described the 1971 burglary as a residential burglary.

The prosecutor attempted to prove that the 1966 conviction was for residential burglary by asking the court to take judicial notice of the court's own file in case No. 21673, and particularly four items in that file.   These four items were an information, a district attorney's report, a probation report, and a “statement of the Judge.”   The prosecutor argued that these items, and also the aforementioned case No. 27936 probation report (from the 1974 forgery conviction), all described the 1966 burglary as a residential burglary.

Appellant's trial counsel objected on hearsay grounds to any statements in these documents which might describe the 1971 and 1966 crimes as being residential burglaries.   He stated:

“And I would object to this as hearsay.   I understand the Court may take judicial notice of its own records, but I don't think that opens the door so that every single thing within the folder is accepted for the truth thereof.

“My understanding of the appellate opinions on the subject are that the hearsay rule does apply.   The court may read preliminary hearing transcripts, if they are there, but the right of confrontation was exercised, and may read probation reports for admissions of a party, namely, the Defendant if any are there.   I don't think a letter from the District Attorney's Office has evidentiary value because it's found in the Court folder.”

The court then proceeded to take judicial notice of the requested documents and found the 1971 and 1966 crimes to have been residential burglaries.

The documents utilized by the court to find that the 1971 burglary (case No. 25257) was residential revealed the following information.   The probation report stated that appellant burglarized the home of a John Porter at 8080 S. Villa in Fowler.   The report was signed by a deputy probation officer.   It does not include any statement from appellant himself admitting that appellant burglarized a residence.   The “Certificate of Magistrate” certifies that appellant “pleaded guilty to ․ Count 3 of complaint, Violation 459 PC.”   The complaint alleges in count three that on or about November 12, 1970, appellant “did willfully and unlawfully enter a building, to wit:  a dwelling house, located at 8080 S. Villa Avenue, Selma with intent to commit theft therein.”   The district attorney's letter appears to be a January 13, 1971, letter from a deputy district attorney to a Fresno County probation officer.   It describes appellant's offense as a November 12, 1970, burglary of “the residence of” John Porter at 8080 South Villa Avenue in Fowler.   The probation report for case No. 27936 has not been made part of the record on appeal.

The documents utilized by the court to find that the 1966 burglary (case No. 21673) was residential revealed the following.   The information alleged that on or about April 6, 1966, appellant “willfully and unlawfully entered a building, to wit:  a dwelling house, located at 12672 East Belmont Avenue, Fresno, California, with the intent to commit theft therein.”   The district attorney's statement appears to be an August 31, 1966, letter from a deputy district attorney to a Fresno County probation officer.   It states that on or about April 6, 1966, appellant “entered the dwelling house of Mr. Kinslow Ashford at 12672 East Belmont Avenue, Sanger, California” and took various items from the home.   The probation report states that appellant “burglarized a home at 12672 East Belmont Avenue, Sanger district, during the afternoon of April 6, 1966.”   It also contains a statement purportedly made by appellant in which appellant explains “[t]he reason I committed this crime” and also says “I know I did wrong by this burglary.”   The statement does not, however, mention what was burglarized.   The statement of the judge is a court document entitled “Views of the Judge (Sec. 1203.01 of P.C.).”   It is signed by a superior court judge and states in part that appellant's “fingerprints were found on the windowsill of the burglarized home.”

I.

THE PRIOR CONVICTIONS

Subdivision (a) of Penal Code 2 section 667 states in relevant part that “any person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately.” 3  Subdivision (d) of the statute defines “serious felony” as “a serious felony listed in subdivision (c) of Section 1192.7.” 4  Subdivision (c) of section 1192.7 defines serious felony to include “burglary of an inhabited dwelling house ․ or inhabited portion of any other building.”  (§ 1192.7, subd. (c)(18).) 5

The application of section 667, subdivision (a) has not been generally problematic because almost all of the “serious felonies” listed in subdivision (c) of section 1192.7 are actual felonies specifically defined in the Penal Code.   For example, the crime of “murder” is listed as a serious felony in subdivision (c)(1) of section 1192.7 and is defined in section 187 (“Murder is the unlawful killing of a human being, or a fetus, with malice aforethought”).  “Rape” is listed as a serious felony in subdivision (c)(3) of section 1192.7 and is defined in section 261 (“Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of [seven specifically listed] circumstances”).  “Robbery” is listed as a serious felony in subdivision (c)(19) of section 1192.7 and is defined in section 211 (“Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear”).

“Burglary of an inhabited dwelling house,” however, is not a crime that is specifically defined in the Penal Code.   An inhabited dwelling house is only one of many structures which may be burglarized by a person who commits the crime of burglary.   A judgment of conviction for the crime of burglary does not therefore establish that the conviction was for burglary of an inhabited dwelling house (or, to use the phraseology used by the parties in this case, burglary of a “residence” or “residential burglary”).

How, then, do the People in a criminal case prove that an alleged prior conviction for residential burglary was in fact a conviction for burglary of a residence, as opposed to a conviction for a burglary of some other structure?

The California Supreme Court addressed this question in People v. Guerrero (1988) 44 Cal.3d 343, 243 Cal.Rptr. 688, 748 P.2d 1150.   The court concluded that the trier of fact “may look to the entire record of” the alleged prior conviction.  (Id. at p. 355, 243 Cal.Rptr. 688, 748 P.2d 1150.)  Guerrero overruled People v. Alfaro (1986) 42 Cal.3d 627, 230 Cal.Rptr. 129, 724 P.2d 1154, a case which had previously held that proof a conviction was a “serious felony” within the meaning of sections 667, subdivision (a) and 1192.7, subdivision (c) was limited to matters necessarily established by the prior judgment of conviction.

In Guerrero the defendant was charged with “burglarizing an inhabited dwelling house” in 1984.  (People v. Guerrero, supra, 44 Cal.3d at p. 345, 243 Cal.Rptr. 688, 748 P.2d 1150.)   The information also alleged two prior convictions for “residential burglary,” one in 1978 and one in 1981.   (Ibid.)  The defendant's trial was bifurcated.   After the jury found the defendant guilty of the 1984 burglary, he waived his right to a jury trial on the remaining allegations.   The allegations that he had been convicted of residential burglary in 1978 and 1981 were then tried to the court.  “After reviewing the record of each conviction, which included an accusatory pleading charging a residential burglary and defendant's plea of guilty or nolo contendere, the court found each allegation to be true.”  (Ibid.)  The Court of Appeal, citing Alfaro, reversed and stated that “ ‘[b]ecause the nature of the building entered during the burglary was not an element of the crime when Guerrero committed his two prior offenses, enhancements cannot be imposed under Penal Code section 667.’ ”  (Guerrero, supra, 44 Cal.3d at p. 346, 243 Cal.Rptr. 688, 748 P.2d 1150.)   The California Supreme Court vacated the judgment of the Court of Appeal and stated:

“[W]e conclude the Court of Appeal erred in holding it improper for the trial court to look beyond the judgment to the entire record of the conviction in determining the truth of each of the two prior-conviction allegations.   Under the rule we adopt, the trial court acted properly.”  (Id. at p. 356, 243 Cal.Rptr. 688, 748 P.2d 1150, fn. omitted.)

The Guerrero court said the following about its “look to the entire record of the conviction” rule:

“Such a rule is both fair and reasonable.   To allow the trier of fact to look to the entire record of the conviction is certainly reasonable:  it promotes the efficient administration of justice and, specifically, furthers the evident intent of the people in establishing an enhancement for ‘burglary of a residence’—a term that refers to conduct, not a specific crime.   To allow the trier to look to the record of the conviction—but no further—is also fair:  it effectively bars the prosecution from relitigating the circumstances of a crime committed years ago and thereby threatening the defendant with harm akin to double jeopardy and denial of speedy trial.”   (Id. at p. 355, 243 Cal.Rptr. 688, 748 P.2d 1150.)

Notwithstanding the Guerrero court's statement that “the trial court acted properly” in “reviewing the record of each conviction, which included an accusatory pleading charging residential burglary and defendant's plea of nolo contendere” (id. at pp. 356, fn. omitted, and 345, 243 Cal.Rptr. 688, 748 P.2d 1150), the Guerrero opinion contains a single but significant footnote.   That footnote states:

“In this case we are not called on to resolve such questions as what items in the record of conviction are admissible and for what purpose or whether on the peculiar facts of an individual case the application of the rule set forth herein might violate the constitutional rights of a criminal defendant.   Because we are not called on to resolve such questions, we decline to address them here.”  (Id. at p. 356, 243 Cal.Rptr. 688, 748 P.2d 1150, fn. .1)

The Guerrero dissent pointed out that if the People rely upon an accusatory pleading alleging residential burglary for the purpose of establishing a defendant's burglary was the burglary of a residence, then the use of the accusatory pleading for that purpose would appear to be hearsay.  (44 Cal.3d at p. 360, 243 Cal.Rptr. 688, 748 P.2d 1150.)  “ ‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.”   (Evid.Code, § 1200, subd. (a).)  “Except as provided by law, hearsay evidence is inadmissible.”  (Evid.Code, § 1200, subd. (b).)  The rule that hearsay evidence is inadmissible is known as the “hearsay rule.”  (§ 1200, subd. (c).)

The majority opinion in Guerrero did not directly address the question of whether an accusatory pleading's allegation that a burglary was “residential” is hearsay if the pleading is offered to prove the defendant's prior conviction was for residential burglary.   Did the Guerrero court's statement that “the trial court acted properly” when it looked to the entire record of conviction mean a trial court may always consider the accusatory pleading?   Or did the court's footnote mean that the accusatory pleading may be considered so long as no hearsay objection is raised?   The Court of Appeal cases addressing this issue have taken the former view.  People v. Johnson (1989) 208 Cal.App.3d 19, 256 Cal.Rptr. 16, and this court in People v. Gomez (1990) 219 Cal.App.3d 157, 268 Cal.Rptr. 50, have both rejected the argument that an accusatory pleading should be excluded as hearsay.   Without directly answering the question of whether an accusatory pleading is in fact hearsay, or whether any previously recognized exception to the hearsay rule applies, the Johnson and Gomez courts each rejected the hearsay argument by stating:

“The evidence relevant to prior convictions in Guerrero included accusatory pleadings charging residential burglary and a plea thereto of either guilty or nolo contendere.   We are here presented with the same exact evidence.   If such evidence of conviction in Guerrero was sufficient to satisfy our Supreme Court, it is necessarily sufficient to satisfy us.”   (People v. Johnson, supra, 208 Cal.App.3d at p. 27, 256 Cal.Rptr. 16;  People v. Gomez, supra, 219 Cal.App.3d at p. 160, 268 Cal.Rptr. 50.)

The Johnson court relied upon an information and an “abstract of judgment indicating a plea of guilty to second degree burglary.”  (208 Cal.App.3d at p. 26, 256 Cal.Rptr. 16.)   In Gomez this court relied upon an information and an “abstract of judgment indicating a conviction of burglary in the second degree by guilty plea.”  (219 Cal.App.3d at p. 159, 268 Cal.Rptr. 50.)   Many other cases have upheld a trial court's finding, based at least in part on the allegations of an accusatory pleading, that a prior burglary conviction was for burglary of a residence.  (See, e.g., People v. Castellanos (1990) 219 Cal.App.3d 1163, 269 Cal.Rptr. 93 (information, change of plea transcript, preliminary hearing transcript);  People v. Harrell (1989) 207 Cal.App.3d 1439, 1444, 255 Cal.Rptr. 750 (information, minute order stating that defendant had pled no contest to burglary “as charged in the Information”);  People v. Smith (1988) 206 Cal.App.3d 340, 342, 253 Cal.Rptr. 522 (complaint, information, Tahl form admission);  People v. Carr (1988) 204 Cal.App.3d 774, 778, 251 Cal.Rptr. 458 (information, change of plea form initialed and signed by defendant);  People v. Batista (1988) 201 Cal.App.3d 1288, 1293–1294, 248 Cal.Rptr. 46 (information, reporter's transcript of hearing at which defendant entered plea of guilty);  and People v. Colbert (1988) 198 Cal.App.3d 924, 927, 244 Cal.Rptr. 98 (information, abstract of judgment, and “minute order reflecting that a jury had found appellant guilty of burglary in the second degree ‘as charged in the information.’ ”).   These latter cases do not appear to involve hearsay objections to accusatory pleadings, but rather reject the argument that an accusatory pleading and a guilty plea (or an official court document recording a plea of guilt or a finding of guilt) do not constitute sufficient evidence upon which to base a finding that there was a prior conviction for burglary of a residence.   They appear to be based, however, upon the same rationale as Johnson and Gomez, i.e., what is sufficient for the California Supreme Court should be sufficient for an intermediate appellate court.

In spite of what appears to be uniform case law agreement that the allegations of an accusatory pleading may be used by the trier of fact in determining whether a prior burglary conviction was for burglary of a residence, case law has also nevertheless recognized that not everything in a “record of conviction” is admissible.   Although Guerrero did not define what it meant by the term “entire record of conviction,” subsequent case law has defined that term to include anything which was filed in or lodged with the superior court, and any transcripts of superior court proceedings.  (See People v. Abarca (1991) 233 Cal.App.3d 1347, 1350, 285 Cal.Rptr. 213.)  “The question of precisely which items in the record of conviction are admissible appears to be a different issue from what items actually constitute the record of conviction.”  (People v. Smith, supra, 206 Cal.App.3d at p. 345, 253 Cal.Rptr. 522;  in accord, see People v. Castellanos, supra, 219 Cal.App.3d at p. 1173, fn. 8, 269 Cal.Rptr. 93.)  Guerrero “does not answer which items within the record are admissible.”  (Abarca, supra, 233 Cal.App.3d at p. 1347, 285 Cal.Rptr. 213;  People v. Gonzales (1994) 29 Cal.App.4th 1684, 1703, 35 Cal.Rptr.2d 450.)

Although statements appearing in a probation report have been held under some circumstances to be hearsay and thus generally inadmissible under the hearsay rule (People v. Williams (1990) 222 Cal.App.3d 911, 272 Cal.Rptr. 212), a defendant's own statement which appears in a probation report has been deemed admissible when it satisfies the admission exception to the hearsay rule.  (People v. Garcia (1989) 216 Cal.App.3d 233, 237, 264 Cal.Rptr. 662;  People v. Goodner (1990) 226 Cal.App.3d 609, 615–616, 276 Cal.Rptr. 542 (“Goodner I”);  People v. Goodner (1992) 7 Cal.App.4th 1324, 9 Cal.Rptr.2d 543 (“Goodner II”);  see also Evid.Code, § 1220.)

Similarly, a reporter's transcript of a change of plea hearing was found to be admissible, over a hearsay objection, when that transcript showed the defendant answered “yes” when asked by the court if he pleaded guilty to burglary of a “residence.”  (People v. Abarca, supra, 233 Cal.App.3d at pp. 1349–1351, 285 Cal.Rptr. 213.)

A. THE 1971 (FIFTH) PRIOR (NO. 25257)

With regard to case No. 25257, the complaint and the “Certificate of Magistrate” appear to be sufficient, by themselves, to demonstrate that appellant's conviction in No. 25257 was for burglary of the 8080 South Villa Avenue residence.   The complaint alleged in count three that appellant burglarized that residence, and the “Certificate of Magistrate” was a certification by Judge M. Uchiyama that on December 17, 1970, appellant pleaded guilty to count three of the complaint.   Under the Guerrero rule, as applied there and applied again by this court in Gomez, supra, these items may be used to prove that a prior conviction was for residential burglary.

Appellant contends that People v. Myers (1993) 5 Cal.4th 1193, 22 Cal.Rptr.2d 911, 858 P.2d 301 and People v. Wheeler (1992) 4 Cal.4th 284, 14 Cal.Rptr.2d 418, 841 P.2d 938 call for a different result.   They do not.

Myers clarified that the Guerrero rule (looking to the entire record of the prior conviction) was also applicable to prior convictions which were incurred outside of California.   The court stated that “the trier of fact must be permitted to go beyond the least adjudicated elements of the offense and to consider, if not precluded by the rules of evidence or other statutory limitation, evidence found within the entire record of the foreign conviction.”  (Id. at p. 1201, 22 Cal.Rptr.2d 911, 858 P.2d 301.)   Nothing in Myers suggests or implies that Myers was somehow tightening the Guerrero rule.   Whatever was admissible before Myers was still admissible after Myers.   Indeed, the court in Myers expressly stated it would not address appellant's contention that recitals in a probation report relied upon by the trial court to find that the prior conviction was for residential burglary were hearsay.  (Id. at p. 1198, 22 Cal.Rptr.2d 911, 858 P.2d 301.)

People v. Wheeler, supra, 4 Cal.4th 284, 14 Cal.Rptr.2d 418, 841 P.2d 938, did not address at all the issue of what evidence is or is not admissible to prove that a prior burglary conviction was for residential burglary.   Wheeler held that the fact a witness has been convicted of a misdemeanor “remains inadmissible under traditional hearsay rules when offered to prove that the witness committed misconduct bearing on his or her truthfulness.”   (Id. at p. 288, 14 Cal.Rptr.2d 418, 841 P.2d 938.)  Wheeler 's holding “is a narrow one, confined to the specific issue whether under current law a misdemeanor conviction is admissible as direct evidence of criminal conduct.”   (Id. at p. 300, fn. 14, 14 Cal.Rptr.2d 418, 841 P.2d 938.)   The case does not involve proving that a prior serious felony conviction was a conviction for residential burglary.

However, Wheeler does have a bearing upon a distinction that we view as pivotal to this entire issue.   This is best illustrated by the difference between what conduct a defendant may have engaged in as having a bearing on moral turpitude, a petty theft, and whether such conduct is proven by a misdemeanor conviction of petty theft.  Wheeler held that “a misdemeanor conviction itself is inadmissible hearsay when offered as evidence that a witness committed misconduct bearing on credibility.”  (Wheeler, supra, 4 Cal.4th at p. 297, 14 Cal.Rptr.2d 418, 841 P.2d 938.)   The court noted:

“As the California Law Revision Commission [ ] has explained, ‘[a]nalytically, a judgment that is offered to prove the matters determined by the judgment is hearsay evidence.  [Citations.]  It is in substance a statement of the court that determined the previous action [i.e., other than by a testifying witness] ․ that is offered “to prove the truth of the matter stated.”  [Citation.]  Therefore, unless an exception to the hearsay rule is provided, a judgment would be inadmissible if offered in a subsequent action to prove the matters determined.’  (Cal.Law Revision Com. com., 29B West's Ann.Evid.Code (1966 ed.) § 1300 pp. 342–343.)”  (People v. Wheeler, supra, 4 Cal.4th at p. 298, 14 Cal.Rptr.2d 418, 841 P.2d 938.)

Under the rationale of the foregoing, the misdemeanor conviction of petty theft would be admissible to prove a person had been convicted of petty theft but would not be admissible to prove the individual had committed a petty theft.

 Thus, we come to the fundamental question.  Guerrero held the trial court should look to the entire record.   However, Guerrero did not resolve what type of evidence could be used.   Rather, the question of the type of evidence that may be used is dependent, as always, on what it is being offered to prove.   For example, something may be inadmissible hearsay when offered to prove the truth of a statement but be admissible evidence to prove that the statement was made.

In the context before us the issue is whether the appellant is a person “who previously has been convicted of a serious felony․”  As we view it, the question is not whether the appellant committed the conduct constituting the prior serious felony but what was the conduct of which he was convicted.   Therefore, the issue would be what was the conduct the appellant was accused of that resulted in his conviction?

The dichotomy of what the record is being used to prove is well illustrated by the dissent in Guerrero:

“The majority assert, however, that they are not ‘called upon’ to explain how the new rule applies to the case before them or to any other pending case.   [Citation.]  But surely we are called upon to decide the case at bar.   Is there competent evidence in this record to show that defendant burglarized a residence?   Is the majority proposing to permit a finding to be based upon the hearsay charges of a criminal complaint, or upon a plea of guilty which at the time entered did not admit superfluous allegations or residency?   Will they permit a defendant to introduce new evidence in rebuttal?   We have to consider not only this case, but also a number of others which have been held pending disposition of Guerrero, and we ought to provide some guidance on how they should be decided.

“If, as I maintain, in this and similar cases there is no competent evidence of residential burglary in the record, then the majority's new rule yields the same result as the Alfaro rule.   We should forthrightly declare that result and affirm the judgment of the Court of Appeal striking the enhancements, thus avoiding unnecessary further proceedings and providing guidance to lower courts for similar cases.

“The record in the present case, so far as it pertains to the enhancements, is only eight pages.   It reveals that in 1978 and 1981 defendant was charged with entering a residence to commit theft, and pled guilty.   He was convicted of second degree burglary.   Residential entry was not an element of that crime.

“The fact that the information asserted that defendant entered a residence is in itself hearsay;  it is admissible only insofar as it explains defendant's plea.  [Citation.]  That plea, however, admitted only the elements of the charged crime.  [Citations.]  It does not admit allegations which do not constitute elements of the crime.   Defendant's convictions established only those elements necessarily adjudicated.  [Citation.]  Thus the record before us contains no competent evidence that defendant committed burglary of a residence.   It shows only that the prosecutor on each occasion claimed the defendant entered a residence, that defendant entered a plea which did not necessarily admit that claim, and the court entered a judgment which did not adjudicate the claim.   It is pointless to remand this case to the Court of Appeal;  since there is no competent evidence in the record to show defendant was convicted of residential burglary, we should affirm the judgment of the Court of Appeal striking the enhancements.”  (People v. Guerrero, supra, 44 Cal.3d at pp. 359–360, 243 Cal.Rptr. 688, 748 P.2d 1150 (dis. opn. of Boussard, J.).)

With all due respect, the dissent in Guerrero begs the question.   An information may be hearsay if offered to prove that a defendant committed specific conduct.  (Guerrero, supra, 44 Cal.3d at p. 360, 243 Cal.Rptr. 688, 748 P.2d 1150, dis. opn.)   However it is not hearsay if offered to prove what the accusation was.   Thus, while the penal provision may be burglary, the charge may make it clear that the accusation is burglary of a dwelling house.   Therefore, in looking to the entire record, it may well be clear that the accusation and the evidence presented or other pertinent circumstances will show that the conviction or plea to the charge involved an accusation of conduct which constitutes a serious felony.   The conviction would bear upon whether that was the conduct of which the person was convicted—not whether that was the conduct committed.

Parenthetically, while we note the burden is on the prosecution to demonstrate what the appellant was convicted of and the conduct giving rise to the accusation, a defendant is not precluded from showing that the conduct giving rise to the accusation was other than clear or may have materially affected the conclusion that the alleged conduct was such as to be a serious felony.   In other words, on the facts before us, the record might show there was a dispute whether the building was a dwelling house or a storage shed.   Under those circumstances the prosecution would have to meet its burden of showing the accusation in the record was clearly entry into a dwelling house.

Therefore, we conclude an information charging entry into a dwelling house is evidence of the nature of the conduct of which the defendant is accused.   Likewise his guilty plea to that accusation is some evidence of acknowledgment of that conduct.

 While a guilty plea is regarded as an admission, it is correct that a conviction is only dispositive of the least adjudicated elements of the charged crime.  (People v. Thomas (1986) 41 Cal.3d 837, 844, fn. 6, 226 Cal.Rptr. 107, 718 P.2d 94;  People v. Jones (1959) 52 Cal.2d 636, 651, 343 P.2d 577.)   A building for purposes of a burglary may be a storage shed, a business or a residence.   The elements may not disclose the nature of the accusation—entry into a dwelling house.   Therefore, the nature of the accusation is evidence of the conduct pled to by the defendant.   If there is a guilty plea to entry into a building with intent to steal (Pen.Code, § 459), and the accusation is that the building was a residential dwelling, then absent other evidence one can infer that the building was a residential dwelling in determining what the conduct was of which the defendant was convicted.   This is not the same as saying the defendant in fact entered a residence with the intent to steal.

 Further, a probation report may well be hearsay if offered to prove the conduct related in the report but it is, in our view, an official record for purposes of demonstrating the alleged facts giving rise to the accusation.

An excellent illustration of the official records exception is People v. Parker (1992) 8 Cal.App.4th 110, 10 Cal.Rptr.2d 38.   In Parker, one criminalist testified to the foundation for admission of another criminalist's lab report.

“We conclude the trial court's ruling admitting Brenda Smith's reports was proper.   Under section 1280 a record may be admitted into evidence if it was made by and within the scope of duty of a public employee at or near the time of the act, condition, or event recorded and if the sources of information and the method and time of preparation were such as to indicate its trustworthiness.  [Citations.]  ‘The trustworthiness requirement for this exception to the hearsay rule is established by a showing that the written report is based upon the observations of public employees who have a duty to observe the facts and report and record them correctly.’  [Citation.]  Whether the trustworthiness requirement has been met is a matter within the trial court's discretion.  [Citation.]'

“The Comment of the Law Revision Commission to section 1280 notes:

“ ‘The evidence that is admissible under this section is also admissible under Section 1271, the business records exception.   However, Section 1271 requires a witness to testify as to the identity of the record and its mode of preparation in every instance.   In contrast, Section 1280, as does existing law, permits the court to admit an official record or report without necessarily requiring a witness to testify as to its identity and mode of preparation if the court takes judicial notice or if sufficient independent evidence shows that the record or report was prepared in such a manner as to assure its trustworthiness.’ ”  (People v. Parker, supra, 8 Cal.App.4th at pp. 116–117, 10 Cal.Rptr.2d 38.)

Additionally, we noted in People v. Dunlap (1993) 18 Cal.App.4th 1468, 1477, 23 Cal.Rptr.2d 204:

“In addition to taking judicial notice, a court may rely on the rebuttable presumption that official duty has been regularly performed (Evid.Code, § 664) as a basis for finding that the foundational requirements of Evidence Code section 1280 are met.  [Citation.]”

A probation officer is a public official presumed to have properly performed his or her duty.   That duty includes relating the facts from the police report, preliminary transcript, or other source.   This does not mean that those facts are admissible to prove that was the conduct but rather that those were the facts of which the defendant was accused.   This report is subject to correction at sentencing.

In our view, all these facts giving rise to the allegation have a bearing on what conduct the accused was convicted of.   This is an entirely separate consideration from whether the conviction proves the accused committed the acts of which he or she was convicted.   Again, the question under section 667 is whether the accused was convicted of a serious felony.

 Where the facts alleged in the probation report of entry into a dwelling are not challenged, the complaint/information alleges entry into a dwelling and the defendant pleads guilty, it makes no sense to conclude that it cannot be determined the charge of which the defendant was convicted was breaking into a residence.

We therefore adhere to our earlier decision in Gomez, where we held that an accusatory pleading and an abstract of judgment could be admissible and sufficient to prove that a defendant had previously been convicted of residential burglary.

It similarly appears here that the trial court's finding of a prior residential conviction in No. 25257 could not properly be reversed regardless of whether the other items considered by the court were or were not properly admissible.   No evidence was introduced by any party to attempt to show or even suggest that the prior conviction in No. 25257 was for a crime other than residential burglary.   Therefore, even if we assume that other evidence considered by the trial court was not properly admissible, there is no reasonable probability the trial court would not have found that appellant was convicted in No. 25257 for a residential burglary.  (People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243.)

Nevertheless, we deem it appropriate to comment as follows on the other evidence offered by the People and relied upon by the court to find true the allegation that appellant's conviction in No. 25257 was for residential burglary.

We note there is nothing in the No. 25257 probation report which purports to be a statement by appellant admitting that he burglarized a residence.   The report does state that appellant burglarized the 8080 South Villa residence, but those statements appear to be statements of the author of the report, and would therefore appear to be hearsay if offered to prove their truth.   (Williams, supra;  Garcia, supra;  “Goodner I,” supra;  “Goodner II,” supra.)   However, we conclude they do constitute evidence of the nature of the accusation.   As such they are properly admitted here for that purpose.

We conclude the evidence was sufficient to show appellant was convicted of a serious felony for the fifth prior.

B. THE 1966 (SIXTH) PRIOR (NO. 21673)

Applying the same principles discussed above, the residential nature of the No. 21673 conviction appears to have been established by the information's allegation that appellant “entered ․ a dwelling house, located at 12672 East Belmont Avenue” and appellant's admissions in the No. 21673 probation report that “I committed this crime” and “I know I did wrong by this burglary.”   Appellant offered no evidence showing or suggesting that the crime was not burglary of a residence.   In other words, the evidence was undisputed.

Once again, and for the reasons already discussed above, other statements in the probation report describing the burglary as a burglary of a home at 12672 East Belmont appear to be statements of the deputy probation officer who authored the report and are admissible to show the nature of the accusation.   Respondent concedes that the August 31, 1966, district attorney's letter describing the crime as burglary of “a home at 12672 East Belmont Avenue” was inadmissible hearsay.   We express no view on the admissibility of the document entitled “VIEWS OF JUDGE (Sec. 1203.01 of P.C.)” which stated that appellant's “fingerprints were found on the windowsill of the burglarized home” and that appellant “entered a plea of guilty to charge of burglary, second degree, on August 18, 1966.”  (See also People v. Johnson, supra, 208 Cal.App.3d at p. 26, 256 Cal.Rptr. 16, and § 1203.01.)

We conclude the evidence admitted was sufficient to show appellant was convicted of a serious felony for the sixth prior.

II.

THE $2,000 RESTITUTION FINE **

III.

DISPOSITION

For the reasons stated in part II above, the restitution fine is ordered reduced to $200.   In all other respects, the judgment is affirmed.   The trial court is directed to prepare an amended abstract of judgment.

FOOTNOTES

1.   A substantially similar issue is presently before the California Supreme Court in People v. Reed (SO 46378;  review granted July 6, 1995).

FN2. All subsequent references are to the Penal Code unless otherwise indicated..  FN2. All subsequent references are to the Penal Code unless otherwise indicated.

3.   Section 667 was amended after appellant's conviction.   Our references in the text of this opinion to section 667 refer to the statute as it read at the time of appellant's conviction.   The quoted language still appears in the statute, however, and is presently found in subdivision (a)(1).

4.   See fn. 3, supra.   This same definition of “serious felony” appears in the current version of section 667 at subdivision (a)(4).

5.   Although the information in the present case alleged that appellant's fifth and sixth prior convictions were both for “a serious felony, to wit:  Residential Burglary,” no such crime is listed by that name in section 1192.7, subdivision (c)'s definition of “serious felony.”   Subdivision (c)(18) of section 1192.7 formerly listed “burglary of a residence” as a serious felony, but that subdivision was amended in 1986 to read as is quoted above in the text of this opinion.   Nevertheless, case authority has held that a “residence” is an “inhabited dwelling house.”  (See, e.g., People v. Harrell (1989) 207 Cal.App.3d 1439, 1445, 255 Cal.Rptr. 750;  People v. Garcia (1989) 216 Cal.App.3d 233, 238, 264 Cal.Rptr. 662.)   Although it appears to us that an information filed in 1993 should have alleged a serious felony by using language which appeared in section 1192.7, subdivision (c) itself, rather than the term “Residential Burglary,” appellant makes no contention that adequate proof of a residential burglary would not constitute adequate proof of the serious felony defined in subdivision (c)(18) of section 1192.7.   Rather, appellant and respondent both use the phrase “residential burglary” as shorthand for the serious felony defined in subdivision (c)(18) of section 1192.7.   Our use of the terminology “residential burglary” or “burglary of a residence” in this opinion should likewise be so construed.

FOOTNOTE.   See footnote *, ante.

ARDAIZ, Presiding Justice.

MARTIN and STONE (WM. A.), JJ., concur.