PEOPLE v. BRYAN

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Court of Appeal, Second District, Division 2, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Jeffrey Dean O'BRYAN, Defendant and Appellant.

Cr. 43580.

Decided: January 20, 1984

Quin Denvir, State Public Defender, Richard Lennon, Deputy State Public Defender, for defendant and appellant. John K. Van De Kamp, Atty. Gen. of State of Cal., Gary R. Hahn, Edward T. Fogel, Jr., Deputy Attys. Gen., for plaintiff and respondent.

Penal Code section 667, added as part of the Proposition 8 initiative on June 8, 1982, provides in pertinent part that:

“(a) Any person convicted of a serious felony who previously has been convicted of a 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 ․  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․”

Included within the numerous serious felonies specified in Penal Code section 1192.7 is that of “burglary of a residence.”  (Pen.Code, § 1192.7(c)(18).)

On August 25, 1982, an information was filed in Ventura County Superior Court accusing appellant of two counts “of the crime of violation of section 459 of the Penal Code, in that on or about July 27, 1982 ․ he did willfully and unlawfully enter the residence and building occupied by [two separate victims], with the intent to commit larceny.”   The information further alleged as “Prior serious felony No. 1” that appellant “was on and about the 29th day of January, 1980, ․ convicted of residential burglary, a felony, in violation of section 459 of the Penal Code, within the meaning of Penal Code section 667(a).”

After initially pleading not guilty to the charges and denying the prior conviction, appellant entered into a Felony Disposition Statement which provided, inter alia, that “The defendant will plead nolo contendere to Count I, a violation of Penal Code section 459, Burglary, and admit the prior.   The remaining counts will be dismissed after the defendant is sentenced.”

At the hearing on this change of plea, the following transpired:

“THE COURT:  The record will show that the defendant is present in CR17687, coming on at this time for change of plea.

The People appear by Mr. Janes.

If you'll arraign the defendant, please, for change of plea.

MR. JANES:  Mr. O'Bryan, it's my understanding that you wish to plead nolo contendere to—may I have just a moment here?

I believe that was Count 1 of the Information against you.

THE DEFENDANT:  Yes.

MR. JANES:  Also, it's my understanding you wish to admit Prior Serious Felony Allegation No. 1.

That alleges that you, on the 29th day of January, 1980, in the Superior Court of the State of California for the County of Ventura, were convicted of residential burglary, a felony, in violation of Section 459 of the Penal Code, within the meaning of Penal Code Section 667(a).

Is it your desire to admit that Prior Serious Allegation?

THE DEFENDANT:  Yes, it is.

MR. JANES:  And you realize that could result in a five-year enhancement of the sentence?

THE DEFENDANT:  Yes.

MR. JANES:  Do you understand for purposes of the criminal law, your plea of nolo contendere to the burglary charge has the same effect as a guilty plea.   It's going to constitute a conviction and will empower the Court to sentence you as though you'd pleaded guilty?

THE DEFENDANT:  Yes.

MR. JANES:  Have you discussed the facts of this case and all possible defenses which you might have with your attorney, Mr. Noble?

THE DEFENDANT:  Yes.

MR. JANES:  Are you entering this plea freely and voluntarily, not as the result of any force, pressure or threats or coercion brought against you or any member of your family?

“THE DEFENDANT:  Yes.

MR. JANES:  Do you also agree that no commitments have been made to you or your attorney other than those commitments appearing on this [Felony Disposition Statement] form?

THE DEFENDANT:  Yes.

MR. JANES:  Do you agree the Court may receive and consider the transcript of the preliminary examination as proof of the factual basis for your plea?

THE DEFENDANT:  Yes.

MR. JANES:  Has your attorney explained to you the direct and indirect consequences of this plea, including the maximum possible sentence?

THE DEFENDANT:  Yes.

MR. JANES:  You understand that you could be sentenced to up to three years in the state prison on Count 1, the burglary charge, and five years on the prior for a total of up to eight years in the state prison?

THE DEFENDANT:  Yes.

MR. JANES:  Do you realize in this case, the District Attorney will be seeking a prison sentence?

THE DEFENDANT:  Yes.

MR. JANES:  Now, in this case, there are two counts alleged against you.   One of them is going to be dismissed at the time of sentencing.   However, are you agreeable that all the facts and information relating to any and all counts, allegations of prior convictions, and other sentencing enhancement allegations, can be included within the probation report and considered by his Honor when it comes to deciding what an appropriate disposition in your case is?

THE DEFENDANT:  Yes.

MR. JANES:  Now, calling your attention to Page 4 here, where it says, ‘Defendant's signature’;  is that your signature?

THE DEFENDANT:  Yes.

MR. JANES:  And on Pages 2, 3, and 4, where I see the initials ‘JO’, are those your initials?

THE DEFENDANT:  Yes, they are.

MR. JANES:  Is that an indication that you read this form over, that you discussed it with your attorney, and that you do understand the terms of this Felony Disposition Statement?

THE DEFENDANT:  Yes.

THE COURT:  Mr. O'Bryan, Count 1 of the Information alleges that you, Jeffrey Dean O'Bryan, violated Section 459 of the Penal Code, in that on or about July 27, 1982, in the County of Ventura, State of California, you did willfully and unlawfully enter the residence and building occupied by Maurice Paz Estrada with the intent to commit larceny.

How do you plead to Count 1 of the Information?

THE DEFENDANT:  No contest.

THE COURT:  Counsel join?

MR. NOBLE:  Yes.

THE COURT:  The defendant's previously-entered plea of not guilty is vacated.   His new and different plea of no contest is ordered entered, and upon that plea now having been entered, the Court finds the defendant guilty of a violation of Section 459 of the Penal Code, as alleged in Count 1.

Stipulated to the second degree?

MR. NOBLE:  Yes, your Honor.

MR. JANES:  Yes.

THE COURT:  All right.   So stipulated and so found.

It is further alleged that you, Jeffrey Dean O'Bryan, were, on and about the 29th day of January, 1980, in the Superior Court of the State of California, for the County of Ventura, convicted of residential burglary, a felony, in violation of Section 459 of the Penal Code, within the meaning of Penal Code Section 667(a).

Do you admit Prior Serious Felony No. 1 as alleged?

THE DEFENDANT:  Yes.

THE COURT:  Counsel joins?

MR. NOBLE:  Yes, your Honor.

THE COURT:  The defendant's previously-entered denial is vacated.   His admission is entered, and upon the admission now having been entered, the Court finds Prior Serious Felony No. 1 to be true.”

Appellant was thereafter sentenced to state prison for the consecutive terms of two years on Count I, plus five years for the prior conviction.

Without otherwise contesting the matter, appellant contends on the appeal that:

1.  He could not properly receive a five year enhancement for a prior residential burglary because (a) the instant felony was only for second degree burglary and thus not a serious felony, (b) the prior conviction was not necessarily for burglary of a residence, and (c) there is no crime of residential burglary which he could admit to by his plea of nolo contendere.

2. Assuming his instant conviction was properly enhanced with a prior serious felony conviction, the length of the enhancement should be only two years because otherwise the total term would exceed twice the length of the base term in contravention of Penal Code section 1170.1, subdivision (g). 1

Neither claim of error can be sustained.

 Concerning the first of them,2 what is maintained is that the initial prerequisite to application of Penal Code section 667 is a current conviction of a “serious felony,” which in the case of burglary consists only of “burglary of a residence,” agreeably with Penal Code section 1192.7, subdivision (c), such that the requirement is lacking here, where appellant's nolo contendere plea was stipulated to be to second degree, or non-residential, burglary.  (See Pen.Code, § 460.)

Similarly, it is said, the further prerequisite found in Penal Code section 667, that the prior conviction also be for a serious felony—on the facts here, again burglary of a residence—cannot be satisfied because at the time of appellant's prior conviction for first degree burglary, that crime included not only invasions of residences, but of “inhabited portions of ․ other buildings.”

Finally on this point, it is urged, because there is no crime of “residential burglary,” and because appellant can only be held to have admitted to so much of a charge as is properly described, the fact that appellant's plea and admission were referenced to an information formulated in the terms hereinabove set out is of no consequence and cannot provide the basis for the sentence imposed.

We are of the opinion that in view of the record herein, and on the basis of settled principle, appellant's arguments are without merit.

 So it is clear appellant admitted that he “willfully and unlawfully enter[ed] the residence [of his victim] with the intent to commit larceny” and that his plea of no contest to that count was entered by the trial court “as alleged” in the information.   The fact that following entry of that plea, and apparently solely for purposes of reducing the sentence, a stipulation to second degree burglary was accepted, is not controlling, there being at best an inconsistency in pleas calculated to benefit appellant.

 In like fashion, while it is true appellant's guilty plea on the described prior might have referred to his unlawful entry into an inhabited portion of a building, it was in any event one which established he had committed burglary of a residence (see People v. Allard (1929) 99 Cal.App. 591, 592, 279 P. 182;  see also People v. Guthrie (1983) 144 Cal.App.3d 832, 838, 847–50, 193 Cal.Rptr. 54;  People v. Marquez (1983) 143 Cal.App.3d 797, 800–801, 192 Cal.Rptr. 193;  cf. People v. Jackson (4th Dist.1983) 149 Cal.App.3d 1051, 197 Cal.Rptr. 229), however the offense is otherwise defined, such that the principle reiterated in People v. Crowson (1983) 33 Cal.3d 623, 190 Cal.Rptr. 165, 660 P.2d 389 to the effect it is impermissible to go behind the necessarily adjudicated elements of another conviction in an attempt to show a defendant committed a greater, lesser, or different offense, is without application here.   Such being the case, and because Penal Code sections 667 and 1192.7(c) clearly refer to an existing, and not a new crime, (see People v. Jackson, supra, 149 Cal.App.3d 1051, 197 Cal.Rptr. 229) appellant's sentence enhancement was properly imposed.

 Respecting appellant's second contention, it is enough to say we are satisfied that the addition through Proposition 8 of section 28(f) of Article I of the California Constitution served to supercede the restriction found in Penal code section 1170.1(g) (see Fn. 1) by its clear language that “any prior felony convictions ․ shall subsequently be used without limitation for purposes of ․ enhancement ․,” and that appellant's suggestion this conclusion is somehow made questionable by the enactment in August of 1982 of Penal Code section 1170.8(b) 3 derives from a misreading of that provision, which simply places multiple convictions in a current proceeding on the same footing as prior convictions in other proceedings.

The judgment of conviction is affirmed.

FOOTNOTES

1.   “(g) The term of imprisonment shall not exceed twice the number of years imposed by the trial court as the base term pursuant to subdivision (b) of Section 1170 unless the defendant stands convicted of a “violent felony” as defined in subdivision (c) of Section 667.5, or a consecutive sentence is being imposed pursuant to subdivision (c) of this section or an enhancement is imposed pursuant to Section 12022, 12022.5, 12066.6 or 12022.7 or the defendant stands convicted of felony escape from an institution in which he is lawfully confined.”

2.   Appellant did not obtain a certificate of probable cause for bringing his appeal.  (See Penal Code, § 1237.5.)   Viewing the claims presented as involving a post plea determination of penalty (see People v. Ward (1967) 66 Cal.2d 571, 574, 58 Cal.Rptr. 313, 426 P.2d 881;  People v. Casarez (1981) 124 Cal.App.3d 641, 644, 177 Cal.Rptr. 451), we address them on their merits.

3.   “(b) Notwithstanding the provisions of Section 1170.1, the term of imprisonment may exceed twice the number of years imposed by the trial court as the base term pursuant to subdivision (b) of Section 1170 if the defendant stands convicted of at least two residential burglaries.”

ROTH, Presiding Justice.

COMPTON and BEACH, JJ., concur.