PEOPLE v. DILL

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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Demetrius L. DILL, Defendant and Appellant.

No. D008006.

Decided: February 27, 1990

Ronald K. Olson, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Harley D. Mayfield, Robert M. Foster and Karl T. Terp, Deputy Attys. Gen., for plaintiff and respondent.

After a jury convicted Demetrius L. Dill of two counts of burglary (Pen.Code,1 § 459) and one count of grand theft (§ 487, subd. 1), he admitted allegations in the information regarding two out-of-state convictions:  (1) a prior serious felony conviction within the meaning of sections 667 and 1192.7, subdivision (c)(18);  and (2) a prior felony conviction within the meaning of section 667.5, subdivision (b).   The trial court sentenced Dill to thirteen years in prison, including a five-year enhancement on the prior serious felony conviction and a one-year enhancement on the other prior conviction.   Dill appeals the imposition of both enhancements, contending his out-of-state prior convictions do not fall within either section 667 or section 667.5.

FACTS

At approximately 10 a.m. on September 21, 1987, Janet Bennett was awakened by rustling noises in her Leucadia condominium bedroom and discovered Dill rummaging through her beach bag.   Dill told Bennett he wished she was not at home.   He also said he wanted money and Bennett pointed to a piggy bank, which contained about $30 in quarters.   Dill took the quarters and left.   Later that day, Bennett's roommate arrived and discovered some watches and camera equipment were missing.   At approximately 11:20 a.m. on the same day, Steven Zouzounis arrived at his Leucadia apartment, which is located about a quarter of a mile from Bennett's condominium.   The front door was open, and the lock and door frame were damaged.   Upon entering, Zouzounis heard a noise upstairs and contacted his neighbor.   The neighbor saw Dill leaving Zouzounis's upstairs bedroom, carrying a large radio and a bag slung over his shoulder.   The neighbor pointed a gun at Dill.   Dill advanced forward, saying he needed money to feed his kids.   The neighbor discharged the gun into the deck and Dill stopped.

Police recovered all of the reported stolen items except $90 reported missing by Zouzounis.   Police also recovered a screwdriver, which Dill admitted using to break into Bennett's condominium and Zouzounis's apartment.

On October 21, 1987, the People filed an information, which accused Dill of committing two counts of burglary and one count of grand theft and also contained the following allegations:  (1) Dill suffered a prior serious felony conviction in Illinois on November 5, 1984, within the meaning of section 667, to wit:  three counts of residential burglary;  (2) Dill suffered a prior felony conviction in Illinois on November 5, 1984, within the meaning of section 667.5, to wit:  three counts of residential burglary and had served a prison term for the offenses and had not remained free of prison custody and free of the commission of an offense resulting in a felony conviction for five years following his release from prison, and (3) Dill suffered a prior felony conviction in Illinois on November 28, 1979, within the meaning of section 667.5, to wit:  residential burglary and had served a prison term for the offense and had not remained free of prison custody and free of the commission of an offense resulting in a felony conviction for five years following his release from prison.

After the jury returned guilty verdicts on the burglary counts and the grand theft count, Dill waived further trial and admitted the first and third prior felony allegations.2  The trial court, counsel and Dill engaged in the following discussion concerning the prior felony allegations:

“The Court:  ․ And, Mr. James, with regard to the priors, how do you wish to proceed?

“Mr. James:  Your Honor, I would advise the court that I've discussed this matter with my client, and that he is prepared to admit the serious prior felony, which is directly under count three on the information.

“And that he is also prepared to admit the last prior felony, which is dated on or about 11–28–79.

“Actually, I may have—that's a misprint.   It should be 12–28–79.

“But he is willing to admit that as a prior felony under 667.5(B)[.]

“I have advised him that he has a right to a jury trial on these matters as to whether or not these are valid priors.   And that he is prepared to waive his right to a jury trial in that regard.

“The Court:  Is that what you wish to do, Mr. Dill?

“The Defendant:  Yes.

“The Court:  As to the serious felony prior, that is that on or about November 5th, 1984, in the State of Illinois, you were convicted of residential burglary, and that that is a serious felony prior within the meaning of Penal Code section 667(a) and 1192.7(c)(18).

“The Defendant:  Yes.

“The Court:  And with regard to the second prior, that on or about November 28, 1979, you were convicted in Illinois of residential burglary, and have not remained free of prison custody for five years, within the meaning of Penal Code section 667.5(b).

“The Defendant:  Yes.

“The Court:  Are the People satisfied?

“Mr. Fisher:  Your Honor, the only question I have is whether or not there's a necessity for the complete listing of the rights and the waivers on those as to the priors.

“In addition, to the jury waiver, that various confrontations and self-incrimination—

“Mr. James:  I'll go through them.

“What the district attorney is talking about is this:  With regard to the prior conviction, you have a right to a speedy and a public trial.   It would be by the jury that has just rendered a verdict in your case.

“In addition to that, you have a right to have witnesses called and have me ask them questions.   And, of course, the district attorney may ask them questions.   It's called the right to confront and cross-examine witnesses.

“You also have a right to remain silent or, if you should, you could testify.   You could not be forced to testify.   But if you chose to do so, you may.

“You also have a right to have witnesses subpoenaed at no cost of your own.

“You have a right to have witnesses subpoenaed at no cost to yourself.   And they may help you present your case.

“Lastly, you have a right to be represented by an attorney, me, throughout the entire stage, or throughout the entire proceedings regarding the prior convictions.

“Do you have any questions about any of those rights?

“The Defendant:  No.

“The Court:  Do you understand that?

“The Defendant:  Yes.

“The Court:  All right.

“Mr. James:  Are you willing to give up these rights as we have previously indicated?

“The Defendant:  Yes.

“Mr. James:  Is that satisfactory?

“The Court:  Are the People satisfied?

“Mr. Fisher:  Yes.

“Mr. James:  For the record, I would advise the court that I've discussed this with Mr. Dill, and that he understands that the first serious prior felony, or his admission to the first serious felony, means his sentence can be enhanced to five years.

“The second prior felony, his sentence can be enhanced by one year, and he has been advised of it and he is aware of it.

“The Court:  Do you understand that, Mr. Dill?

“The Defendant:  Does that mean that I have to do the time concurrent, or do I have to do one and then the other?

“Mr. James:  These are consecutive enhancements, your Honor.

“That means they would be added on.   They're not added on one after the other.

“Is that clear?

“The Defendant:  Yeah.

“Mr. James:  Do you have any questions?

“The Defendant:  No.”

DISCUSSION

I

 We first explain why a pleading error in the information is not fatal to the admission.   With regard to the prior serious felony conviction, the information stated Dill was convicted in 1984 of three counts of residential burglary in violation of Chapter 38 Paragraph 19–1 Illinois Revised Statutes.  Chapter 38 Paragraph 19–1 Illinois Revised Statutes is also pled with reference to the prior felony allegations.

Chapter 38 Paragraph 19–1 of the Illinois Revised Statutes provides:

“§ 19–1.  Burglary.  (a) A person commits burglary when without authority he knowingly enters or without authority remains within a building, housetrailer, watercraft, aircraft, motor vehicle as defined in The Illinois Vehicle Code, railroad car, or any part thereof, with intent to commit therein a felony or theft.   This offense shall not include the offenses set out in Section 4–102 of The Illinois Vehicle Code, nor the offense of residential burglary as defined in Section 19–3 hereof.

(b) Sentence.   Burglary is a Class 2 felony.”  (Fns. deleted, italics added.)

The underscored portion of subdivision (a) was added by the Illinois Legislature, effective January 1, 1982, when the newly enacted Section 19–3 also became effective.   Section 19–3 provides:

“§ 19–3.  Residential burglary.  (a) A person commits residential burglary who knowingly and without authority enters the dwelling place of another with the intent to commit therein a felony or theft.

“(b) Sentence.   Residential burglary is a Class 1 felony.”

By November 5, 1984, when Dill was convicted of three counts of residential burglary, the crime was no longer covered under the general burglary statute (§ 19–1)—as it had been prior to January 1, 1982—but rather was covered under the separate residential burglary statute (§ 19–3).   Thus, the wrong Illinois statute was pled in the serious prior felony allegation.   The pleading error, however, does not require vacation of Dill's admission that he was previously convicted of residential burglary in Illinois on November 5, 1984.  “[T]he allegations of the information, rather than the enumeration of a specific statutory reference or definition, determine what offenses are charged.  (People v. Thomas (1987) 43 Cal.3d 818, 826 [239 Cal.Rptr. 307, 740 P.2d 419]․)  An erroneous reference to a statute in a pleading is of no consequence provided the pleading adequately informs the accused of the act he is charged with having committed.  (Id., at p. 827 [239 Cal.Rptr. 307, 740 P.2d 419];  Isaac v. Superior Court (1978) 79 Cal.App.3d 260, 262 [146 Cal.Rptr. 396]․)”  (People v. Ellis (1987) 195 Cal.App.3d 334, 339, 240 Cal.Rptr. 708.)

II

Dill contends his 1984 conviction in Illinois for residential burglary was not properly deemed a prior serious felony conviction within the meaning of section 667 and his 1979 burglary conviction in Illinois was not properly deemed a prior felony conviction within the meaning of section 667.5, subdivision (b).

Section 667, subdivision (a), provides for imposition of a five-year enhancement where a defendant has been previously convicted “of any offense committed in another jurisdiction which includes all of the elements of any serious felony, ․”  (Italics added.) 3

Section 667.5, subdivision (b), provides for imposition of a one-year enhancement for each prior separate prison term served for any felony if the defendant has not remained free of prison custody for five years.   Subdivision (f) of section 667.5 discusses foreign prior convictions and states in relevant part:  “A prior conviction of a particular felony shall include a conviction in another jurisdiction for an offense which includes all of the elements of the particular felony as defined under California law․”  (Italics added.)

 It appears clear from the statutory language that in order for a prior foreign conviction to properly sustain either a section 667 or a section 667.5 enhancement, the elements of the foreign crime must include all elements of the corresponding California crime.   In other words, “enhancement is only permissible when the elements of the foreign crime, as defined by that jurisdiction's statutory or common law, include all of the elements of the California felony.”  (People v. Crowson (1983) 33 Cal.3d 623, 632, 190 Cal.Rptr. 165, 660 P.2d 389, fn. omitted.)  Crowson involved a one-year enhancement under section 667.5 for a prior federal conviction for drug conspiracy.  People v. Ellis, supra, 195 Cal.App.3d 334, 240 Cal.Rptr. 708, involved a five-year enhancement under section 667 for a prior federal bank robbery conviction.   Citing Crowson, supra, the Ellis court noted the “nearly identical” language in the two statutes concerning the qualification test for foreign convictions and applied the Crowson rule on foreign convictions to section 667.  (People v. Ellis, supra, 195 Cal.App.3d at p. 341, 240 Cal.Rptr. 708.)   We agree.   Under both section 667 and section 667.5, the test for whether a foreign conviction can support the enhancement is whether the elements of the foreign crime include all of the elements of the corresponding California felony.

Dill makes a two-prong argument that the Illinois burglary statutes are not congruent with their California counterparts.   First, he focuses on the language in the Illinois statute:  “without authority he knowingly enters or without authority remains.”  (Italics added.)   Second, he points out there is not complete agreement between the Illinois Criminal Code and the California Penal Code on what crimes are felonies.4

With respect to the language “or without authority remains”, we note that this language is contained in Chapter 38, Paragraph 19–1 of the Illinois Revised Statutes, but not in Chapter 38, Paragraph 19–3 of the Illinois Revised Statutes.  (See pg. 154, ante.)   Thus, it is clear the section 667 enhancement imposed for the 1984 Illinois conviction involving Chapter 38, Paragraph 19–3 of the Illinois Revised Statutes cannot be attacked as violative of the Crowson rule.   The elements of the foreign crime include all the elements of the corresponding California felony.

 However, the section 667.5 enhancement imposed for the 1979 Illinois conviction involving Chapter 38, Paragraph 19–1 of the Illinois Revised Statutes does pose a Crowson issue.   The gist of the crime of burglary in California is entering a building, etc., with the intent to commit a felony or theft.  (§ 459;  People v. Piner (1909) 11 Cal.App. 542, 105 P. 780.)   The felonious intent must be contemporaneous with the entry.  (People v. Brittain (1904) 142 Cal. 8, 10, 75 P. 314;  People v. Conway (1969) 271 Cal.App.2d 15, 18, 76 Cal.Rptr. 251, disapproved on another ground in Owens v. Superior Court (1980) 28 Cal.3d 238, 249, fn. 10, 168 Cal.Rptr. 466, 617 P.2d 1098.)   We cannot say the Chapter 38, Paragraph 19–1 of the Illinois Revised Statutes is congruent with the crime of burglary in California because under the Illinois statute a person who remains without authority within a building with a felonious intent formed after his entry is guilty of burglary.   Such a person would not be guilty of burglary in California because the felonious intent did not exist at the time of entry.5

The issue, however, does not end there if we consider People v. Guerrero (1988) 44 Cal.3d 343, 243 Cal.Rptr. 688, 748 P.2d 1150, the Supreme Court's latest pronouncement on the use of prior convictions for enhancement purposes.

Guerrero overruled People v. Alfaro (1986) 42 Cal.3d 627, 230 Cal.Rptr. 129, 724 P.2d 1154, which held proof that a prior conviction was a “serious felony” for the purpose of the five-year enhancement under sections 667 and 1192.7, subdivision (c), was limited to matters necessarily established by the prior judgment of conviction.   In Guerrero, the Supreme Court held the trier of fact may look to the entire record of the conviction.

In People v. Reynolds (1989) 211 Cal.App.3d 382, 259 Cal.Rptr. 352, the Court of Appeal applied Guerrero to a situation involving two foreign prior convictions that were similar to Dill's 1979 Illinois burglary conviction in that they could be based on acts not constituting the same crimes in California and therefore would not necessarily support the enhancement under section 667.   Since that determination could not be made on the basis of the bare record of the foreign convictions, the Court of Appeal in Reynolds remanded the case to the trial court so that a full inquiry under Guerrero could be made to determine if the facts underlying the defendant's foreign convictions supported the sentence enhancements because they would have been crimes under California law.

“Given that the trial court felt constrained under Alfaro to limit its consideration to the record of conviction, it is unclear on this record whether the People could have produced the change of plea form, the colloquy at the time the plea was taken or other admissible evidence which would have supported the court's findings that the Oregon priors were ‘serious felonies' for enhancement purposes.   In light of the retroactive effect of Guerrero (People v. Batista (1988) 201 Cal.App.3d 1288, 1294 [248 Cal.Rptr. 46] ), we remand to the trial court to permit the prosecution to produce the entire records of the Oregon convictions to the trier of fact on the issue of the sufficiency of the evidence to support the serious felony enhancements based upon the two prior Oregon convictions.”  (People v. Reynolds, supra, 211 Cal.App.3d at p. 390, 259 Cal.Rptr. 352.)

We believe the Reynolds court was correct in allowing the trial court to look at the facts of the foreign offense in Guerrero fashion to determine if the elements were equivalent to the California offense, and we adopt the reasoning of Reynolds.   Here, the policy reasons for allowing such an examination are equally strong since the very reason there was no evidence of the foreign conviction was that Dill admitted the truth of the allegation.

In People v. Ellis, supra, 195 Cal.App.3d 334, 240 Cal.Rptr. 708, the court held the defendant was estopped from challenging on appeal the validity of a federal bank robbery conviction where she admitted as part of a plea bargain that the prior conviction was a serious felony within the meaning of section 667.  (People v. Ellis, supra, 195 Cal.App.3d at p. 347, 240 Cal.Rptr. 708;  see also People v. Jones (1989) 210 Cal.App.3d 124, 258 Cal.Rptr. 294.)

“Whether [a defendant] shall be estopped depends on the importance of the irregularity not only to the parties but to the functioning of the courts and in some instances on other considerations of public policy.   A litigant who has stipulated to a procedure in excess of jurisdiction may be estopped to question it when ‘To hold otherwise would permit the parties to trifle with the courts.’  [Citation.]”  (People v. Ellis, supra, 195 Cal.App.3d at p. 348, 240 Cal.Rptr. 708.)

Ellis and Jones dealt with plea bargains in which the defendants admitted foreign convictions that were used to impose enhancements pursuant to section 667.   The reviewing court upheld the enhancements, finding the defendants were estopped from challenging the admission or the imposition of the enhancement since the defendants were “unfairly manipulat[ing] the system” (Ellis, supra, 195 Cal.App.3d at p. 345, 240 Cal.Rptr. 708) or “ ‘trifling with the courts' ” (Jones, supra, 210 Cal.App.3d at p. 136, 258 Cal.Rptr. 294).

Here, of course, Dill admitted the prior conviction allegation without benefit of a plea bargain, but we conclude on the basis of People v. Thomas (1986) 41 Cal.3d 837, 226 Cal.Rptr. 107, 718 P.2d 94 that any distinction between a plea bargain and an admission is de minimis in this situation.

In People v. Thomas, supra, 41 Cal.3d 837, 226 Cal.Rptr. 107, 718 P.2d 94, prior to trial the defendant admitted four prior serious felonies.   A key issue on appeal was whether such an admission is sufficient when it is not part of a plea bargain.  (Id. at p. 839, 226 Cal.Rptr. 107, 718 P.2d 94.)   A unanimous Supreme Court answered in the affirmative:

“A defendant may admit an enhancement for a variety of reasons:  as part of a plea bargain, as in Jackson;  to obtain a perceived tactical advantage, such as keeping the convictions from the ken of the jury, as here;  because he believes it futile to contest the prosecution's proof;  or simply because he honestly knows the allegations to be true.   We know of no cases which hold that an admission induced by a plea bargain is any more effective to prove a contested allegation than admissions induced by some other motive.   To the contrary, when the sufficiency of an admission of a prior conviction is called into question, the only issue is whether the admission was voluntary, made by a defendant who has been informed of his constitutional rights and of the consequences of the admission.  (See In re Yurko (1974) 10 Cal.3d 857 [112 Cal.Rptr. 513, 519 P.2d 561]․)  An admission which meets those standards is binding whether or not defendant obtained an adequate consideration in return for the admission.”  (Id. at pp. 844–845, 226 Cal.Rptr. 107, 718 P.2d 94.) 6

Here, we do not know why Dill admitted the priors, but we do know he had discussed the matter with counsel, acknowledged he understood the allegations and made the appropriate waivers.   It is entirely plausible that Dill believed it futile to contest the prosecution's proof or honestly knew the allegations were true.  (People v. Thomas, supra, 41 Cal.3d at p. 844, 226 Cal.Rptr. 107, 718 P.2d 94.)   In any event, because of Dill's admission, the prosecution did not offer its proof—the record of his prior foreign felony convictions—and consequently the prosecution's proof was not presented to the trial court.   Even though the consideration of a plea bargain was lacking here, allowing Dill to, in effect, preclude the introduction of the prosecution's proof into the record and then later challenge the validity of the priors when they are not part of the record is giving him carte blanche to manipulate the system.   Neither the law nor equity favors parties “ ‘having it both ways.’ ”   (People v. Ellis, supra, 195 Cal.App.3d at p. 347, 240 Cal.Rptr. 708;  People v. Otterstein (1987) 189 Cal.App.3d 1548, 1552, 235 Cal.Rptr. 108.)

Under all of the circumstances of this case, we deem it is appropriate to remand this cause for a factual reexamination of the underlying Illinois charge rather than to rely on the Ellis estoppel theory.

DISPOSITION

This case is reversed and remanded to the trial court for the limited purpose of evaluating whether Dill's 1979 Illinois burglary conviction would have constituted burglary under California law and would have justified imposition of a one-year sentence enhancement under section 667.5, subdivision (b), in light of People v. Guerrero, supra, 44 Cal.3d 343, 243 Cal.Rptr. 688, 748 P.2d 1150 and in accordance with the terms expressed in this opinion.   Should the trial court determine the 1979 Illinois burglary conviction would not have supported a burglary conviction under California law, it should strike the corresponding one-year enhancement.   In all other respects, the judgment is affirmed.

FOOTNOTES

FN1. All statutory references are to the Penal Code unless otherwise specified..  FN1. All statutory references are to the Penal Code unless otherwise specified.

2.   The trial court granted the prosecutor's motion to dismiss the second prior felony conviction allegation because it was duplicative of the first allegation—the prior serious felony conviction allegation.

3.   Subdivision (d) of section 667 provides:  “As used in this section ‘serious felony’ means a serious felony listed in subdivision (c) of Section 1192.7.”   Subdivision (c) of section 1192.7 provides in pertinent part:  “(18) burglary of an inhabited dwelling house․”

4.   With respect to whether the Illinois felony that a defendant intends to commit when without authority he enters or remains in a building is a felony in California, Dill has not demonstrated in this appeal that his felonious intent would not constitute felonious intent in California.   At most, his argument suggests that the felonious intent element of the two states' statutes are not necessarily equal.   Without a showing that his argument has any application to the facts of this case, it is pure speculation—a mere hypothetical—and we need not consider it.  “Matters not presented by the record cannot be considered on the suggestion of counsel in the briefs.”  (People v. Hernandez (1957) 150 Cal.App.2d 398, 402, 309 P.2d 969.)   Even if we were to assume arguendo that Dill's abstract argument based on the theory that it is possible the Illinois felony he intended to commit is not necessarily a felony in California is sufficient to mount a Crowson challenge, he would be estopped from making this argument on appeal because his admission of the foreign convictions precluded the prosecutor from presenting evidence of them.   (See People v. Thomas, supra, 41 Cal.3d at pp. 844–845, 226 Cal.Rptr. 107, 718 P.2d 94.)

5.   Dill is wrong when he argues in effect that the Illinois burglary statute is different from California law because it explicitly provides for remaining in a building without authority.   It is apparent from the long line of cases following People v. Barry (1892) 94 Cal. 481, 29 P. 1026 (see People v. Gauze (1975) 15 Cal.3d 709, 713, 125 Cal.Rptr. 773, 542 P.2d 1365) that one who remains on the premises without authority and with the accompanying intent—provided that intent was formed at the time of entry—also can be prosecuted for burglary in California.

6.   In People v. Richard (1987) 189 Cal.App.3d 1159, 234 Cal.Rptr. 747, after a jury convicted the defendant of first degree murder, he admitted three prior serious felony allegations within the meaning of section 667.   Relying on Thomas, supra, 41 Cal.3d 837, 226 Cal.Rptr. 107, 718 P.2d 94, the Richard court held the defendant's admissions of the prior convictions “were not limited in scope only to the fact of the convictions, but extended to all allegations concerning the prior convictions contained in the information.   He is now bound by his admissions.”  (People v. Richard, supra, 189 Cal.App.3d at p. 1162, 234 Cal.Rptr. 747, original italics.)

TODD, Acting Presiding Justice.

BENKE and HUFFMAN, JJ., concur.