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

The PEOPLE, Plaintiff and Respondent, v. Harold Binion JACKSON, Defendant and Appellant.

Cr. 15360.

Decided: December 16, 1983

Charles M. Sevilla, San Diego, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Jay M. Bloom and Frederick R. Millar, Jr., Deputy Attys. Gen., for plaintiff and respondent.

Proposition 8, approved by the voters on June 8, 1982, created a “serious felony” category to increase punishment for repeat offenders of such crimes.   Under Penal Code section 667, subdivision (a) 1 a “serious felony” recidivist receives a five year consecutive enhancement “for each such prior conviction on charges brought and tried separately.”  (§ 667, subds. (a) and (d).) 2  “Burglary of a residence” (§ 1192.7, subd. (c)(18)) is included among the list of serious felonies.   Jackson pleaded guilty to a serious felony of a burglary of a residence committed after the passage of Proposition 8.   He admitted a pre-Proposition 8 residential burglary as a “serious felony” prior in exchange for the dismissal of two additional “serious felony” priors.   A seven year sentence was imposed:  two years for the burglary and a consecutive five year enhancement for the prior.   In his sentencing appeal, Jackson argues section 667.5, subdivision (b) 3 mandates only a one year enhancement for his earlier felony conviction.   We hold “burglary of a residence” is a crime recognized before June 9, 1982 and section 667 is not an ex post facto law.   We nonetheless agree with Jackson's contention that People v. Crowson (1983) 33 Cal.3d 623, 190 Cal.Rptr. 165, 660 P.2d 389 precludes imposition of the five year enhancement and modify the sentence from seven years to three years.4

Permeating Jackson's appeal is his notion burglary of a residence is a new crime and for that reason section 667, subdivision (a) must be applied prospectively.   Stated somewhat differently, Jackson says since no crime of burglary of a residence existed before June 9, 1982, the voters could not have intended an increased penalty for any burglary occurring before that date and such application would violate ex post facto principles.   Jackson's underlying premise is wrong.

 As a factual matter a burglary of a residence is nothing new.   Legally, burglary of a residence was included within the scope of section 459 before the passage of Proposition 8 as it is now.   Section 460 specifically limits burglary of the first degree to “[e]very burglary of an inhabited dwelling house or trailer coach ․ or the inhabited portion of any other building ․”  (§ 460, subd. 1.)   The term “inhabited dwelling,” as defined by the courts, is synonymous with “residence.”  (People v. Allard (1929) 99 Cal.App. 591, 592, 279 P. 182.)   California courts have made repeated reference to prosecutions and convictions of “burglary of a residence” totally apart from Proposition 8.  (See, e.g., People v. Rotroff (1982) 138 Cal.App.3d 796, 798, 188 Cal.Rptr. 378 (refers to information as charging “burglary of a residence,” “burglary of the Luberacki residence” and “burglary of the victim's residence”);  People v. Superior Court (Brown) (1975) 49 Cal.App.3d 160, 162, 122 Cal.Rptr. 459 (refers to information as charging burglary “based upon the theft of personal property in the burglary of a residence”);  Nugent v. Superior Court (1967) 254 Cal.App.2d 420, 422, 62 Cal.Rptr. 217 (refers to pending information charging defendants with “burglary of a residence”);  see also In re Kenneth H. (1983) 33 Cal.3d 616, 621, 189 Cal.Rptr. 867, 659 P.2d 1156 (dis. opn. of Mosk, J., referring to juvenile petition as charging “burglary of a residence, a felony”).)   This history illustrates “burglary of a residence” is not a new crime in California.

The Legislature ordinarily determines the punishment for crimes.   However, through the initiative process the electorate also possesses the power to increase the penalty for a particular crime.   Here, the electorate prescribed enhanced punishment for serious felonies committed by serious felony recidivists.   The electorate's intent of deterring crime by increasing penalties is consistent with the stated purpose of the initiative.  (See People v. Smith (1983) 34 Cal.3d 251, 258, 193 Cal.Rptr. 692, 667 P.2d 149.)   When the priors were committed becomes irrelevant to the deterrent scheme, provided the charged serious felony was committed after June 8, 1982.   To conclude recidivists are exempt from the enhancement provisions because their priors occurred before that date would be inconsistent with the intent of the electorate.

 The section 667 enhancement punishes Jackson not for his earlier offenses but for the repetitive nature of the serious felony he committed after Proposition 8 was adopted.   No constitutional bar prevents the application of that section to such an offense solely because the prior conviction which serves as the basis for enhancement was committed before the initiative passed.   In the context of habitual criminal statutes “․ increased penalties for subsequent offenses are attributable to the defendant's status as a repeat offender and arise as an incident of the subsequent offense rather than constituting a penalty for the prior offense.  [Citations.]”  (In re Foss (1974) 10 Cal.3d 910, 922, 112 Cal.Rptr. 649, 519 P.2d 1073, italics added.)   Based on this reasoning, we hold section 667 does not violate the constitutional prohibition against ex post facto laws.  (See People v. Smith, supra, 34 Cal.3d at pp. 259–263, 193 Cal.Rptr. 692, 667 P.2d 149.)

In this case, however, enforcement of section 667, subdivision (a) presents difficulties.   In his plea bargain Jackson admitted he was previously convicted of the serious felony of residential burglary on or about February 8, 1980.   The record of that conviction, in contrast, indicates the charge to be burglary of a building, not a residence.   At the taking of the plea, Jackson said the building was an apartment where someone was living.   Based upon Jackson's representations, the court accepted the plea bargain and imposed sentence.   This manner of proving the elements of the prior conviction, however, was disapproved in People v. Crowson, supra, 33 Cal.3d at pages 633–635, 190 Cal.Rptr. 165, 660 P.2d 389.

 In determining whether Jackson was convicted of a “serious felony” the sentencing court must look exclusively to the previous judgment of conviction.   Although the underlying facts of the previous burglary conviction may establish a Proposition 8 “serious felony,” the sentencing court's inquiry is limited to the face of the earlier judgment.  (People v. Crowson, supra, 33 Cal.3d at p. 635, 190 Cal.Rptr. 165, 660 P.2d 389.)  “ ‘The least adjudicated elements of the prior conviction remain the same whether it is questioned in the trial court at the time of the determination of habitual criminality or ․ after such determination becomes final.   Neither the People nor the defendant can go behind those adjudicated elements in an attempt to show that he committed a greater, lesser or different offense.  [Citations.]’  ․  [¶] ․  In general the doctrine of collateral estoppel regards as conclusively determined only those issues actually and necessarily litigated in the prior proceeding [citations] and the United States Supreme Court has noted that a guilty plea is simply an admission of ‘all the elements of a formal criminal charge.’   [Citation.]”  (Id., at p. 634, 190 Cal.Rptr. 165, 660 P.2d 389, italics in original.)

 Here, the sentencing court went behind Jackson's previous judgment of conviction to establish the requisite facts of a “serious felony.”   Under Crowson such a procedure is impermissible.   Although Jackson's earlier burglary of a building may well have been burglary of a residence, examination of the judgment itself does not reveal all the elements of that offense.   Jackson cannot receive a five year enhancement for the prior felony since he may not admit more than the charged crime.  (In re McVickers (1946) 29 Cal.2d 264, 279, 176 P.2d 40.)


The sentence is modified to reduce the five year enhancement for the prior felony conviction to one year.   As modified, the judgment is affirmed.


1.   All statutory references are to the Penal Code.

2.   Section 667 provides in part:“(a) 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.   The terms of the present offense and each enhancement shall run consecutively.“(d) As used in this section ‘serious felony’ means a serious felony listed in subdivision (c) of section 1192.7.”

3.   Section 667.5, subdivision (b) provides:“(b) Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony․”

4.   Because Jackson's conviction is based on a plea bargain we ordinarily would reverse the judgment, allowing the original charges to be reinstated.  (See People v. Collins (1978) 21 Cal.3d 208, 214–215, 145 Cal.Rptr. 686, 577 P.2d 1026.)   Restoring the status quo is fair to both parties since “ ‘the concept of reciprocal benefits' ” is critical to the plea bargaining process.  (People v. Miller (1983) 33 Cal.3d 545, 555, 189 Cal.Rptr. 519, 658 P.2d 1320.)   Here, however, the plea bargain contemplated modification of the judgment.   When the plea bargain was accepted the district attorney explained if Jackson successfully challenged section 667 he would still suffer a “prison prior under 667.5.”

WIENER, Associate Justice.

GERALD BROWN, P.J., and McCONNELL, J.*, concur.

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