The PEOPLE, Plaintiff and Respondent, v. Eric R. ROME, Defendant and Appellant.
In this case we add our voice to the already discordant appellate requiem for serious felonies and residential burglaries.1 At issue is the construction of Penal Code sections 667 and 1192.7, enacted as part of the Proposition 8 initiative on June 8, 1982, as well as the relationship of those sections to the double-the-base-term limitation of Penal Code section 1170.1, subdivision (g). Parting company from some of our brethren, we hold that the five-year serious felony enhancement for “burglary of a residence,” as mandated and defined by Penal Code sections 667 and 1192.7, subdivision (c)(18), must be imposed when it is established that the defendant has previously been convicted of a felonious burglary which occurred in a residence and thereafter is convicted of the same or another serious felony.2 We also hold that Penal Code section 667 repealed the base term limitation of Penal Code section 1170.1, subdivision (g), to the extent that the provisions are inconsistent.
Pursuant to a plea bargain, defendant Eric R. Rome pled guilty to one count of attempted second degree burglary. (Pen.Code, §§ 664/459.) To establish a factual basis for that plea, defendant stipulated that he attempted to burglarize “the residence located at 232 Grace Avenue” by removing the window screen and moulding. He also admitted an allegation that he had suffered one prior conviction for a serious felony, namely a burglary of a residence. (§§ 667, 1192.7, subd. (c)(18).) When asked by the court whether he admitted or denied having previously suffered a conviction for the serious felony of “burglary of a residence,” defendant replied: “Admit.” (See § 1025.) Defendant was sentenced to the lower base term of eight months for his attempted burglary. His sentence was then enhanced with a consecutive term of five years for his prior conviction for a serious felony under section 667 for an aggregate term of five years and eight months. Defendant appeals contending that neither his present, nor his prior, conviction constitutes a serious felony within the meaning of the statute. He further contends that his total prison term must be limited to twice the base term imposed or to 16 months. We reject these contentions and shall affirm the judgment.3
On the morning of November 15, 1982, defendant attempted to break into the Sacramento residence of Helen Justice.4 A neighbor observed defendant's activity and notified the police. When the police arrived defendant fled but was quickly apprehended. Ms. Justice neither knew defendant nor gave him permission to enter her residence. When she arrived home on the morning of the attempted burglary, she discovered that the weather stripping and screen of her kitchen window had been “ripped off” and her screen had also been cut.
Defendant was charged with attempted burglary in violation of sections 664 and 459. The information alleged that defendant “did willfully, unlawfully, and feloniously attempt to commit the crime of Burglary of HELEN JUSTICE [sic ] located at 232 Grace Avenue, Sacramento, in violation of Section 459 of the Penal Code of the State of California.” The information also charged one prior conviction for a serious felony. That allegation states: “It is further alleged that said defendant ․ was on and about the 22nd day of January, 1982, in the Superior Court of the State of California, County of Sacramento, convicted of a serious felony offense, Burglary of a Residence, within the meaning of Penal Code sections 667 and 1192.7(c).”
The probation report sets forth the factual basis for defendant's prior conviction. It indicates that defendant and another suspect were reported to police for suspicious behavior on January 22, 1982. The complainant described the two suspects and gave the police the license number of their vehicle. Police located the vehicle and established surveillance. Defendant and his companion were stopped for questioning and in the meantime other officers had discovered a residence which appeared to have been entered. The resident was located and a quick check of the residence revealed a wedding ring missing. Defendant was searched and the wedding ring was discovered on his person. This incident led to a state prison commitment of the lower base term of 16 months for second degree burglary.
After the information was filed on the present offense, defendant sought a ruling from the trial court on the applicability of the twice-the-base-term limitation of section 1170.1, subdivision (g) (formerly subd. (f)), on an enhancement imposed pursuant to section 667. The trial court ruled that the limitation did not apply to enhancements for serious felonies under section 667, but expressly provided that its ruling was tentative and without prejudice to defendant to raise the issue at a later time. Plea negotiations then led to an agreement under which defendant would plead guilty to the crime charged and would admit the prior conviction as alleged in the information. The People also agreed to recommend the imposition of the lower base term for the crime of attempted burglary. Defendant then pled guilty to that crime.5
Defendant again filed a motion for a ruling with regard to the applicability of the twice-the-base-term limitation. When the matter came on for sentencing defendant and the People agreed that the plea bargain was without prejudice to raise this issue, but that in the event the trial court should agree with defendant that the limitation applied then the plea agreement for the lower base term would not be binding on the district attorney. The trial court, however, once again rejected defendant's argument. Defendant was sentenced to the lower base term of eight months for the attempted burglary, and received a consecutive enhancement of five years for the prior conviction of a serious felony. In imposing the lower base term for the primary offense the trial court indicated that one of the reasons it was doing so was the severity of the enhancement imposed for the prior conviction.
Before discussing defendant's contentions, it is necessary to set forth an overview of the statutory and constitutional provisions involved in this appeal. The basic determinate sentencing scheme contained in sections 1170 and 1170.1 is by now well known. For most felony offenses the Legislature has provided three possible prison terms and the trial court, if it imposes a prison sentence, must select one of these terms depending upon whether it finds factors in aggravation or in mitigation. (§ 1170, subd. (b).) To the principal term the sentencing court adds any appropriate enhancements in determining the total unstayed prison term. (§ 1170.1.) When determinate sentencing was initially adopted by the Legislature in 1976, the scheme for imposing enhancements was relatively simple. The possible enhancements included those specifically related to the crime charged, such as the use of a firearm (§ 12022.5), being armed with a firearm or using a deadly weapon (§ 12022), taking, damaging or destroying property (§ 12022.6), and the infliction of great bodily injury (§ 12022.7). (See Cassou and Taugher, Determinate Sentencing in California: The New Numbers Game, (1978) 9 Pac.L.J. 5, 23.) There were also general enhancements which related to other crimes committed by the defendant. These included prior felony convictions and prison terms (§ 667.5), and consecutive sentencing (§ 1170.1). (Id., at p. 23.)
In the original version of the determinate sentencing law, section 667.5 provided for enhancement due to prior convictions. This section did not apply unless the defendant had served a prior separate prison term for his prior conviction. (§ 667.5, subd. (e).) The term of the enhancement was one year unless both the new offense and the prior offense were “violent felonies”, in which case the enhancement imposed was three years. (§ 667.5, subds. (a) and (b).) Subdivision (c) of section 667.5 defined the term “violent felony.” These felonies included six specific crimes, any crime punishable by death or life imprisonment, and any other crime in which the defendant was charged and proved to have inflicted great bodily injury or to have used a firearm.
The original version of section 1170.1, subdivision (f), also limited the total term of imprisonment imposed to twice the base term selected unless the defendant was convicted of one of the violent felonies listed in section 667.5, subdivision (c), or he was convicted of a crime while imprisoned in a state prison or subject to reimprisonment for escape from state prison, or an enhancement was imposed pursuant to sections 12022, 12022.5, 12022.6 or 12022.7. Although this provision has been amended and renumbered, its substance remains. Subdivision (g) of section 1170.1 presently limits the total term of imprisonment to twice the base term unless the defendant stands convicted of a violent felony as defined in section 667.5, subdivision (c), he committed his crime while confined in state prison or subject to reimprisonment after escape from state prison, an enhancement is imposed pursuant to section 12022, 12022.5, 12022.6 or 12022.7, or the defendant stands convicted of felony escape from an institution in which he is lawfully confined.
In the years since the Legislature adopted determinate sentencing for California, it has frequently revised the basic scheme to impose more onerous punishment where it determined it to be necessary. (See, e.g., the dramatic increase in potential punishment of violent sex offenders described in People v. Karsai (1982) 131 Cal.App.3d 224, 182 Cal.Rptr. 406.) In the June 1982 Primary Election, the People exercised the initiative power to further revise the determinate sentencing scheme by adopting Proposition 8, known as the Victims' Bill of Rights. Since defendant committed his crime after the effective date of Proposition 8, its provisions apply to him. (People v. Smith (1983) 34 Cal.3d 251, 257–258, 193 Cal.Rptr. 692, 667 P.2d 149.)
Proposition 8 contains two provisions with respect to enhancement for prior felony convictions. First, subdivision (f) of section 28 was added to article I of the California Constitution. That subdivision provides: “Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding. When a prior felony conviction is an element of any felony offense, it shall be proven to the trier of fact in open court.”
Proposition 8 also added section 667 to the Penal Code. Subdivision (a) of that section reads: “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.” There is no requirement of prior incarceration or prison commitment for section 667 to apply. (§ 667, subd. (b).)
The term “serious felony” as used in section 667 means those felonies listed in section 1192.7, subdivision (c), also added to the Penal Code by Proposition 8. (§ 667, subd. (c).) Included in that statutory list are the burglary of a residence and any attempt to commit a listed crime other than an assault. (§ 1192.7, subd. (c)(18) and (25).) Since defendant entered a plea of guilty to the crime of attempting to burgle the residence of Ms. Justice, and admitted a prior conviction for the burglary of a residence, the trial court imposed a five-year consecutive enhancement under Penal Code section 667.
Defendant contends that the enhancement of five years for his prior conviction of a “burglary of a residence” must be stricken because there is no such crime in California and because a conviction for second degree burglary does not include the element of an entry into a residence.
It is, of course, a crime to burgle a residence. Burglary of a residence is, by definition, a crime in California. (§§ 459; 460.) 6 Defendant's objection is thus not that the burglary of a residence is not a crime, but that burglary may be committed in more types of structures than residences, such as in a “shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, railroad car, trailer coach, ․ vehicle ․ [or] mine ․” (§ 459.) A prior burglary conviction then would not necessarily be “of a residence.” All burglaries have in common an entry into a structure with larcenous or felonious intent. Beyond those similarities, the crime covers a wide spectrum of criminal conduct. A peaceful entry into a retail store to shoplift a 10 cent pencil, and a forcible, nocturnal entry into an occupied dwelling to commit murder are both burglaries. Yet one presents a life threatening situation while the other is relatively innocuous. The obvious purpose of section 1192.7 is to denominate only certain burglaries as “serious felonies” while excluding all others. Thus, this section does not purport to define a new and novel substantive crime of burglary. Rather, it seeks only to isolate, from the universe of all burglaries, a single class, burglary of a residence, and to impose upon the repetition of that class of burglaries an enhanced punishment.
It has also been suggested that the People could have accomplished their desired result by simply making first degree burglary a serious felony. This would not appear to be so. Section 460 now provides that burglary of an inhabited dwelling house or trailer coach or of the inhabited portion of any other building is first degree burglary. At the time Proposition 8 was enacted, however, the burglary of any structure was required to have been in the nighttime in order to be in the first degree. (Former Pen.Code § 460; Stats.1978, ch. 579, § 23, p. 1985; Stats.1982, ch. 1290, § 1, 4774–4775.) And as we shall see, the burglary statutes have been the subject of frequent legislative revision. (See Com. Criminal Law—Development of the Law of Burglary in California (1951) 25 So.Cal.Law Rev. 66, 75.) The People were obviously not concerned with the degree of the burglary as a measure of its seriousness. (Cf. People v. Stein, (1948) 31 Cal.2d 630, 634–635, 191 P.2d 409.) It is the object of the burglary which renders it especially opprobrious and the People chose not to leave the determination of the seriousness of the crime to legislative whim in defining and redefining the degrees of burglary.
Be that as it may, defendant counters that the court may not go behind the elements of the prior crime in order to determine whether his burglary in that previous conviction actually involved a residence. Consequently, so the argument goes, because the elements of burglary do not necessarily include a residence and thus all burglaries are not invariably serious felonies, such an enhancement is not authorized by section 667. Defendant's argument finds some apparent support in the decision in People v. Crowson (1983) 33 Cal.3d 623, 190 Cal.Rptr. 165, 660 P.2d 389. However, for reasons we will explain, we find the decision in Crowson not to be controlling on the issue posed here.
Crowson was a case of statutory construction. In that case the Supreme Court considered the meaning of Penal Code section 667.5, subdivision (f), which then provided: “A prior conviction of a felony shall include a conviction in another jurisdiction for an offense which if committed in California is punishable by imprisonment in state prison provided the defendant served one year or more in prison for such offense in the other jurisdiction. 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 provided the defendant served one year or more in prison for such offense in the other jurisdiction.” (Emphasis added.) The court held that the elements-of-the-offense standard precludes enhancement of a prison sentence for a prior conviction in a foreign jurisdiction unless the minimum statutory elements for commission of the foreign crime would also establish a felony in California. (33 Cal.3d at p. 634, 190 Cal.Rptr. 165, 660 P.2d 389.) Thus, the court concluded that an enhancement under section 667.5 could not be imposed for a prior federal drug conspiracy conviction because, unlike the California conspiracy statute, an overt act was not an element of the federal offense. Ruling that the statutory term “offense” referred to a specific crime as defined by law and not to the actual conduct of the defendant, the court declared: “This interpretation finds support in the cases construing a parallel statutory provision relating to prior foreign convictions, section 668. In In re Finley (1968) 68 Cal.2d 389 [66 Cal.Rptr. 733, 438 P.2d 381], Chief Justice Traynor, writing for a unanimous court, reviewed the general principles applicable in determining whether a foreign conviction could be used pursuant to section 668 as a basis for increased punishment under the then-existing habitual criminal law. (Former § 644.) Chief Justice Traynor explained that such a determination ‘does not [involve] the opening or reopening of questions calling for resolution on the basis of the testimony of witnesses who may have died or disappeared or where memories have faded․ The fact that an accused suffered a foreign conviction of a crime is made officially of record at the time and place of such conviction, and the law of the jurisdiction where he suffered it is judicially noticed. [Citations.] 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 on habeas corpus 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.]’ (Italics added.) (68 Cal.2d at pp. 392–393 [66 Cal.Rptr. 733, 438 P.2d 381]. See e.g., In re McVickers, supra [ (1946) ], 29 Cal.2d 264, 276 [176 P.2d 40].) The Legislature evidently intended to endorse this approach by explicitly incorporating an elements-of-the-offense standard in section 667.5, subdivision (f).” (33 Cal.3d at pp. 633–634, 190 Cal.Rptr. 165, 660 P.2d 389, fn. omitted.)
This comparison test between the least adjudicated elements of the prior foreign conviction and the California offense applies, the court further ruled, no matter what conduct the current accusatory pleading alleges the defendant engaged in when he committed the foreign crime. “If proof of an overt act was not required to sustain a conviction under the federal statute, neither a guilty verdict after a jury trial nor a plea of guilty may accurately be viewed as establishing that such an act occurred, regardless of the allegations of the charging pleading.” (Id., at p. 634, 190 Cal.Rptr. 165, 660 P.2d 389.)
Crowson is not dispositive here for two reasons. First, as we have seen, it dealt with comparisons between the elements of domestic and foreign crimes.7 If the minimum elements of those crimes are not identical, the enhancement cannot be imposed under any pleading. Thus, if a foreign statute included an open amphitheater in its definition of burglary, it could not be used as an enhancement because California's burglary statute requires a structure with a roof. (People v. Gibbons (1928) 206 Cal. 112, 114, 273 P.2d 32; People v. Brooks (1982) 133 Cal.App.3d 200, 204–205, 183 Cal.Rptr. 773.) Under Crowson, this would be true no matter what type of structure defendant actually burglarized in the foreign jurisdiction and regardless of phraseology of the pleading. But if the foreign offense also requires a structure with a roof, as well as the other requirements of our burglary statute, then the Crowson test is met.
As we have shown, proof of a residence is not an element of the crime of burglary in California. Just as one can commit murder without using a firearm, so too can one commit burglary without entering a residence. Needless to say, that doesn't mean that an assassination with a machine gun is not murder or that the entry of a residence to commit theft is not burglary. Although the nature of the structure may have a bearing on the degree of burglary, “[t]he aggravating factors used to establish the degree of an offense are not the elements of the crime. [Citations.]” (People v. Scofield (1983) 149 Cal.App.3d 368, 371, 196 Cal.Rptr. 812.) Thus we are not concerned in this case with the lack of an element of the crime of burglary. The Crowson prohibition against delving behind the adjudicated prior conviction to prove some missing element is thus not present here.
Secondly, the application of Crowson in the manner sought by defendant would effectively strike subdivision (c)(18) from section 1192.7 for purposes of enhancement. Under defendant's construction, no burglary conviction could ever be used to enhance punishment under section 667. We reject that construction because “[t]he court has no right to legislate the proviso from the statute or emasculate its application under the guise of judicial interpretation.” (Orpustan v. State Farm Mut. Auto. Ins. Co. (1972) 7 Cal.3d 988, 994, 103 Cal.Rptr. 919, 500 P.2d 1119.) In short, the decision in Crowson construed statutory language relating to the elements of an offense and its reasoning cannot be employed to nullify the express provisions of sections 667 or 1192.7, subdivision (c)(18), by transferring it to issues unrelated to the elements of burglary.8
The fundamental rule of statutory construction, to which all other such rules are subordinate, is that the court should ascertain the intent of the lawmakers in order to effectuate the purpose of the law. (Sand v. Superior Court (1983) 34 Cal.3d 567, 571, 194 Cal.Rptr. 480, 668 P.2d 787.) The particular objectives the legislation seeks to achieve are of prime importance in this inquiry. (Mercer v. Perez (1968) 68 Cal.2d 104, 112, 65 Cal.Rptr. 315, 436 P.2d 315; see also Landrum v. Superior Court (1981) 30 Cal.3d 1, 12, 177 Cal.Rptr. 325, 634 P.2d 352.) The purpose of the People in designating burglary of a residence as a serious felony is self-evident. Certain felonies, because of their inherently life threatening nature, have been determined to warrant the imposition of onerous enhancements when the perpetrators persist in their commission. It is the potential for grievous and irremediable harm embedded in these serious felonies that warrants their harsher punishment for, as it has been noted, “[h]arm, in sum, is the fulcrum between criminal conduct and the punitive sanction ․” (Hall, General Principles of Criminal Law (2d ed. 1960) p. 213.)
Burglary was originally a crime against habitation; it enforced the ancient concept that no intrusion should be permitted into one's place of abode. (See Perkins on Criminal Law (2d ed. 1969) Burglary, pp. 200–201.) The common law notion that a person's home should especially be protected against intrusion persists. (See People v. Guthrie (1983) 144 Cal.App.3d 832, 847, 193 Cal.Rptr. 54; 1 LaFave, Search and Seizure (1978) § 2.3, pp. 290–291.) “Burglary laws are based primarily upon a recognition of the dangers to personal safety created by the usual burglary situation—the danger that the intruder will harm the occupants in attempting to perpetrate the intended crime or to escape and the danger that the occupants will in anger or panic react violently to the invasion, thereby inviting more violence. The laws are primarily designed, then, not to deter the trespass and the intended crime, which are prohibited by other laws, so much as to forestall the germination of a situation dangerous to personal safety; and thus the higher degree of the burglary law is intended to prevent those situations which are most dangerous, most likely to cause personal injury․ [¶] ․ [T]he fact that the building is used as a home also increases such danger: a person is more likely to react violently to burglary of his living quarters than to burglary of other places because in the former case persons close to him are more likely to be present, because the property threatened is more likely to belong to him, and because the home is usually regarded as a particularly private sanctuary, even as an extension of the person.” (People v. Lewis (1969) 274 Cal.App.2d 912, 920, 79 Cal.Rptr. 650.) The California burglary statute, however, has been amended so that now few structures fail to fall within its prohibitions. (See Com., Criminal Law—Development of the Law of Burglary in California, supra, 25 So.Cal.Law Rev. at p. 79.) “This evolution, combined with elimination of the requirement that the crime be committed at night, signifies that the law is no longer limited to safeguarding occupancy rights.” (People v. Gauze (1975) 15 Cal.3d 709, 712, 125 Cal.Rptr. 773, 542 P.2d 1365.) In making the burglary of a residence a serious felony within the meaning of sections 667 and 1192.7, the People clearly intended, by the threat of harsher punishment, to isolate their homes from these searing and ever increasing violations of their privacy.9 This purpose would not be served by making any burglary a serious felony since, as we have seen, not all burglaries entail such a base and offensive intrusion into the home. Accordingly, the People made burglary a serious felony subject to increased penalties upon repetition, but only if it be shown that the object of the burglary was a residence.
When the purpose of the statute in question is ascertained, it is our duty to give effect to that purpose unless there appears some constitutional prohibition precluding its operation. Here the electorate has made a conviction for burglary a basis upon which a prison term for a new offense may be enhanced, provided that the prior burglary be shown to have been “of a residence.” The question, then, is whether it was permissible for the People to qualify the use of a prior conviction for enhancement with a factor which is not a statutory element of the crime. When the question is thus phrased, the answer is clear. Habitual criminal provisions commonly qualify or limit the use of prior convictions with factors which are not elements of the crime. Indeed, section 667.5 qualifies the use of prior convictions for enhancement by requiring that it be shown the defendant served a prior separate prison term for such offense. (§ 667.5, subd. (e).) Yet service of a prior prison term is not itself a crime in California, and conviction of a felony for which the accused served a prison term is not a statutorily defined crime. If it is competent to qualify the use of prior convictions by requiring a showing that a prison term was served, we can perceive no reason why it is not equally competent to qualify the use of a prior burglary conviction by requiring the object of the burglary to be shown to have been a residence.
It is suggested that the term “of a residence” is vague. We disagree. A statute is sufficiently definite if it provides a standard of conduct for those whose activities are proscribed, for police enforcement and for judicial ascertainment of guilt. (Burg v. Municipal Court (1983) 35 Cal.3d 257, 269, 198 Cal.Rptr. 145, 673 P.2d 732.) It need therefore only describe a violation with a reasonable degree of certainty so that ordinary people can understand what is prohibited. (Id. at pp. 270–271, 198 Cal.Rptr. 145, 673 P.2d 732.) We have no doubt that, in adding the qualifier “of a residence” to the crime of burglary to constitute it a serious felony, the People intended to protect their homes from repeated criminal intrusion, and consequently the term “residence” is synonymous with the phrase “inhabited dwelling.” (See People v. Allard (1929) 99 Cal.App. 591, 592, 279 P. 182.) 10 “ ‘ “Names change often with habits and customs of the people; it is not so important to determine the name, as the thing, wherein burglary by the statute, may be committed. That subtle astuteness that would discover a difference where none exists, and would find a way of escape ․ through narrow crevices of the law, serves no useful purpose. When one is charged with crime in plain language, and convicted by honest men upon legal evidence, it is better that he work out the penalty to the relief of the public and the safety of the State.” ’ ” (People v. Burley (1938) 26 Cal.App.2d 213, 215, 79 P.2d 148, quoting from State v. Ebel (1932) 92 Mont. 413, 15 P.2d 233, which in turn quoted from State v. Bishop (1878) 51 Vt. 287.)
Finally, we note that although habitual criminal statutes, as penal provisions, are to be strictly construed (In re Connell (1945) 68 Cal.App.2d 360, 363, 156 P.2d 483), that rule of construction is “ ‘not an inexorable command to override common sense and evident statutory purpose. It does not require magnified emphasis upon a single ambiguous word in order to give it a meaning contradictory to the fair import of the whole remaining language.’ ” (People v. Hallner (1954) 43 Cal.2d 715, 721, 277 P.2d 393, quoting from United States v. Brown (1948) 333 U.S. 18, 25–26, 68 S.Ct. 376, 380, 92 L.Ed. 442, 448.) The rule should not be invoked to abort a manifest and reasonable legislative purpose. (People v. Banks (1959) 53 Cal.2d 370, 391, 1 Cal.Rptr. 669, 348 P.2d 102.) While sections 667 and 1192.7 are on balance punitive, the limitation of burglaries to those “of a residence” is in fact ameliorative. The People could have accomplished their purpose by making every burglary a serious felony. Such a provision, while undoubtedly permissible, would have been too sweeping to accomplish the more limited purpose of the People. We should not lightly disregard the People's decision to narrow the application of section 667 and 1192.7 to those burglars whose crimes are particularly serious.
For these reasons we reject defendant's contention that a prior conviction for a burglary of residence cannot be considered a serious felony.11 Defendant expressly admitted the truth of the allegation that he was previously convicted in Sacramento County of “a serious felony offense, Burglary of a Residence, within the meaning of Penal Code Sections 667 and 1192.7(c).” The record, as we have recounted, contains a factual basis which fully supports the finding. Because defendant previously committed a burglary of a residence and was convicted of that offense, his prison term was liable to enhancement under the terms of section 667 if his present conviction was also for a residential burglary.
Defendant next contends that his present conviction for attempted burglary was not for the burglary of a residence. In addition to asserting that there is no such crime in California, a contention we have just rejected, defendant also argues that the present information did not charge that the attempted burglary was “of a residence.” Defendant points out that the information only charged that he attempted to commit the crime of “Burglary of HELEN JUSTICE located at 232 Grace Avenue, Sacramento ․”
We agree with the People that the information contains an obvious clerical error. Burglary is a crime against habitation or occupancy, and not against the person. (See 1 Witkin, Cal.Crimes (1963) § 451. p. 414; Perkins, Criminal Law (2d ed. 1969) p. 192.) Thus, while Ms. Justice may have been the victim of defendant's attempted burglary in the sense that it was her habitation or occupancy which was violated, she could not personally have been the object of the attempted burglary. One cannot burgle a person; one burgles a building or other structure, in this case a residence.
An information charging a burglary is sufficient if it provides the defendant with notice of the building which he is alleged to have burgled or attempted to burgle. (People v. Price (1904) 143 Cal. 351, 353, 77 P. 73.) And in determining whether a defendant had proper notice of the charge reference may be had to the evidence adduced at the preliminary hearing. (People v. Galloway (1965) 233 Cal.App.2d 369, 371, 43 Cal.Rptr. 617. See also People v. Roberts (1953) 40 Cal.2d 483, 487, 254 P.2d 501; People v. Manson (1977) 71 Cal.App.3d 1, 47, 139 Cal.Rptr. 275.) There is no question in this case that the information sought to charge, and defendant understood it to charge, the attempted burglary of a residence. The evidence at the preliminary hearing established that the object of defendant's attempted burglary was a residence. The information gave the address of the object of the attempt, which, of course, is the residence of Ms. Justice. Defendant agreed to a plea bargain, entered his plea, and made his legal arguments on the assumption that he was charged with a serious felony, namely, the attempted burglary of a residence. If there was ambiguity in the information then it was incumbent upon defendant to raise his objection by demurrer; his failure to do so constitutes a waiver of this minor, technical and manifestly nonprejudicial defect. (People v. Heim (1961) 196 Cal.App.2d 1, 5, 16 Cal.Rptr. 277; People v. Burness (1942) 53 Cal.App.2d 214, 218, 127 P.2d 623; People v. Sanchez (1939) 35 Cal.App.2d 316, 317, 95 P.2d 462.) In short, “[a]n inadvertent error which omits ․ an established element of the charge is not ground for reversal where the defendant did not demur and was obviously not misled.” (Witkin, Cal.Crim.Procedure, Proceedings Before Trial, § 194, p. 183.)
Although defendant thus waived the clerical error, it does not necessarily follow that his plea of guilty to this mutant information constituted an adjudication that the structure burglarized was a residence. California courts have long held that a plea of guilty to an information admits only such allegations as are actually charged. (See e.g., In re Tartar (1959) 52 Cal.2d 250, 256–257, 339 P.2d 553; People v. James (1978) 88 Cal.App.3d 150, 161, 151 Cal.Rptr. 354.) Because the information, by inadvertence, did not actually allege that he attempted to burgle a residence and because entry into a residence is not a necessary element of the crime, defendant's plea of guilty did not adjudicate that he committed a “burglary of a residence.” Nevertheless, it is equally settled that an omission in the accusatory pleading may be cured when the defendant expressly admits the omitted part. (See e.g., In re Gilliam (1945) 26 Cal.2d 860, 866, 161 P.2d 793; In re Boatwright (1932) 216 Cal. 677, 681, 15 P.2d 755.) As we have recounted, defendant actually stipulated that he attempted to burglarize a residence. He cannot now claim otherwise.
Defendant finally contends that the enhancement of his prison term due to his prior conviction was limited by the terms of section 1170.1, subdivision (g), so that his total term cannot exceed twice his base term.12 He argues that because Proposition 8 did not amend it this subdivision permits the five-year serious felony enhancement only when the enhancement would not otherwise cause the total term to exceed twice the base term. Since the base term was 8 months, defendant argues that his aggregate term must be limited to 16 months.
In interpreting the meaning of a statutory enactment there are numerous rules of construction which guide a court but the cardinal rule of construction, as we have noted, is that the statute is to be construed so as to give effect to the intent of the lawmakers. (Sand v. Superior Court, supra, 34 Cal.3d 567, 571, 194 Cal.Rptr. 480, 668 P.2d 787; Mercer v. Perez, supra, 68 Cal.2d 104, 112, 65 Cal.Rptr. 315, 436 P.2d 315.) The particular objectives the legislation seeks to achieve are of prime importance in this inquiry. (Ibid.; see also Landrum v. Superior Court, supra, 30 Cal.3d at p. 12, 177 Cal.Rptr. 325, 634 P.2d 352; East Bay Municipal Utility Dist. v. Appellate Department (1979) 23 Cal.3d 839, 843, 153 Cal.Rptr. 597, 591 P.2d 1249; People v. Ruster (1976) 16 Cal.3d 690, 696, 129 Cal.Rptr. 153, 548 P.2d 353.) Where, as here, we are concerned with a measure adopted by the People through the initiative power, it is appropriate that the purpose of the measure be determined by reference to the language used, the ballot summary, the argument and analysis presented to the electorate, and the contemporaneous construction by the Legislature. (See Los Angeles County Transportation Com. v. Richmond (1982) 31 Cal.3d 197, 203, 182 Cal.Rptr. 324, 643 P.2d 941; Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 245–246, 149 Cal.Rptr. 239, 583 P.2d 1281.)
These constructional aids leave no doubt as to the intent of the People in enacting Proposition 8. The general purpose of the enactment was specified in subdivision (a) of section 28, added to article I of the constitution. There the People proclaimed: “The rights of victims pervade the criminal justice system, encompassing not only the right to restitution from the wrongdoers for financial losses suffered as a result of criminal acts, but also the more basic expectation that persons who commit felonious acts causing injury to innocent victims will be appropriately detained in custody, tried by the courts, and sufficiently punished so that the public safety is protected and encouraged as a goal of highest importance ․ [¶] To accomplish these goals, broad reforms in the procedural treatment of accused persons and the disposition and sentencing of convicted persons are necessary and proper as deterrents to criminal behavior and to serious disruption of people's lives.”
To accomplish these purposes Proposition 8 contains two provisions with respect to enhancement of prison sentences for prior convictions. Subdivision (f) of section 28 of article I of the Constitution provides that any prior felony conviction shall be used without limitation for purposes of enhancement of sentence in a subsequent criminal proceeding. Section 667 was also added to the Penal Code to require the imposition of a five-year enhancement for each prior conviction of a serious felony on charges brought and tried separately when the defendant stands presently convicted of a serious felony. The Legislature may increase the length of the enhancement by majority vote, but may otherwise amend section 667 only “by statute passed in each house by rollcall vote entered in the journal, two-thirds of the membership concurring, or by a statute that becomes effective only when approved by the electors.” (§ 667, subds. (c) and (e).)
The description and background of these provisions set forth in the voter's pamphlet serves to explicate their purpose. The Legislative Analyst explained: “Under existing law, a prison sentence can be increased from what it otherwise would be by from one to ten years, depending on the crime, if the convicted person has served prior prison terms, and a life sentence can be given to certain repeat offenders. Convictions resulting in probation or commitment to the Youth Authority generally are not considered for the purpose of increasing sentences, and there are certain limitations on the overall length of sentences. [¶] This measure includes two provisions that would increase prison sentences for persons convicted of specified felonies. First, upon a second or subsequent conviction for one of these felonies, the defendant could receive, on top of his or her sentence, an additional five-year prison term for each such prior conviction, regardless of the sentence imposed for the prior conviction. This provision would not apply in cases where other provisions of law would result in even longer prison terms. Second, any prior felony conviction could be used without limitation in calculating longer prison terms.” (Cal. Ballot Pamphlet, Primary Election (June 8, 1982), pp. 54–55, emphasis in original.)
The analysis of Proposition 8 by the Assembly Committee on Criminal Justice prepared before its enactment (which, incidentally, the committee strongly opposed), provides further assistance in determining the intent of the measure as perceived by knowledgeable legislators. In analyzing the habitual criminal provisions of Proposition 8, the committee stated in part: “The initiative would, by extending this provision, require a 50-year enhancement for a person who has 10 prior home burglary convictions. This burglar would have a stiffer sentence than a person convicted for first degree murder (25 years to life). [¶] The initiative would further lengthen sentences over the present system by removing two term restrictions in current law.” (Assem.Com. on Criminal Justice, Analysis of Proposition 8, The Criminal Justice Initiative (March 1982) p. 43.)
From these materials it is clear that one of the purposes of Proposition 8 was to reform the disposition and sentencing of convicted criminals, especially those who commit serious felonies, and in particular to impose substantially more onerous punishment upon those who repeatedly commit serious felonies. In determining the effect of Proposition 8 we must remain faithful to this purpose.
It has been recognized that Proposition 8 may have repealed or modified by implication existing statutory provisions. (Brosnahan v. Brown (1982) 32 Cal.3d 236, 256, 186 Cal.Rptr. 30, 651 P.2d 274.) The doctrine of implied repeal is not favored and will be applied only where two enactments concern the same subject matter and are in irreconcilable conflict. (In re Thierry S. (1977) 19 Cal.3d 727, 744, 139 Cal.Rptr. 708, 566 P.2d 610.) Where there is such an irreconcilable conflict, the most recently enacted statute will be held to have repealed inconsistent provisions of the former statute. (Ibid.; see also In re White (1969) 1 Cal.3d 207, 212, 81 Cal.Rptr. 780, 460 P.2d 980.)
Under this standard, there can be no doubt that section 667, added to the Penal Code by Proposition 8, operated as a partial repeal of both section 667.5 and section 1170.1, subdivision (g). Section 667.5 imposes a one-year enhancement for prior separate prison terms unless both the present offense and the prior offense were “violent felonies” in which case the enhancement is three years. The term “violent felony” includes a very limited number of specific crimes within its definition. Section 667 substantially increases the number of crimes for which recidivism may result in increased enhancement and denominates such offenses “serious felonies;” it increases the additional enhancement for repeat offenses to five years; and it discards the requirement that the accused served a prior prison term for his prior offense. Section 667 is manifestly irreconcilable with section 667.5 and must be held to have impliedly repealed that section where they are inconsistent.
We also conclude that the twice-the-base-term limitation in section 1170.1, subdivision (g) is inconsistent and irreconcilable with section 667. As the trial court noted, many, if not most, prosecutions for serious felonies as defined in section 1192.7 could not, or would not, result in the imposition of a base term which could support a five-year enhancement for a prior offense if the twice-the-base-term limitation were applicable. Moreover, in the event of multiple prior convictions the additional enhancements could not be imposed. This case is illustrative. Burglary of a residence, and attempted burglary of a residence are serious felonies. (§ 1192.7, subd. (c)(18) and (25).) But if the twice the base limitation applied not even one full enhancement could be imposed under section 667 unless the burglary were determined to be a completed burglary in the first degree, and the sentencing court imposed the upper or aggravated term of six years. (See § 461.) Otherwise, the highest punishment for second degree burglary is three years (§§ 18, 461) and twice that term is six years. Thus the five year enhancement would always violate the base term limitation for all but aggravated first degree burglaries. Even more anomalously, if that limitation applied additional enhancements for multiple prior convictions of most serious felonies could never be imposed, notwithstanding the express mandate of section 667 that the five year enhancement be imposed “for each such prior conviction.” As the trial court noted, the application of the limitation in section 1170.1, subdivision (g) to serious felonies would render the recidivist provisions of Proposition 8 illusory. This incongruity, if accepted, would occur despite the fact the People were informed that the measure would result in longer prison commitments, and despite the fact they specifically added a section to the constitution to provide that prior convictions shall be used for enhancement without limitation. Such a result is inconsistent and irreconcilable with the terms of Proposition 8 and we therefore hold that Proposition 8 must be construed as an implied repeal of section 1170.1, subdivision (g) where the defendant stands convicted of a serious felony and has previously been convicted of a serious felony.13
The judgment is affirmed.
I respectfully dissent.
I do not agree with the majority that Penal Code sections 667 and 1192.7 1 contemplate that a five-year enhancement shall be imposed where a defendant has committed a burglary the object of which happened to be a residence. The statutes (which are curiously not addressed by the majority and which I set forth in full in the margin) 2 are simply not reasonably subject to the meaning inferentially given them by the majority.
Sections 667 and 1192.7 work in concert. Section 667 describes what shall happen to those convicted of serious felonies; it refers to section 1192.7 to determine what felonies are serious ones. Both these statutes clearly contemplate that the serious felonies at issue are discrete crimes with elements, or discrete enhancements that are commonly pleaded. We know this for several reasons. First, section 667 speaks of “Any person convicted of a serious felony who previously has been convicted of a serious felony ․” That language contemplates a conviction of a defined crime. The language does not even remotely suggest that the objects of crimes are to be considered in imposing an enhancement.
Next, subdivision (a) of section 667 states that an out-of-state felony constitutes a serious felony when it “includes all the elements of any serious felony ․” From this language, we may reasonably infer that in-state serious felonies are discrete crimes with elements that can be compared to the elements of out-of-state discrete crimes.
As noted, section 667 uses section 1192.7 as a convenient laundry list to define what felonies are serious. However, section 1192.7 is not principally an enhancement statute. Rather, its primary announced purpose is to limit plea bargaining. Subdivision (a) of section 1192.7 tells us plea bargaining is prohibited “in any case in which the indictment or information charges any serious felony ․” (Emphasis added.) From this language, we can reasonably infer that the laundry list set forth in subdivision (c) is made up of matters that we would ordinarily expect to see pleaded in an indictment or information, because subdivision (a) of the statute has told us it is only those pleaded serious felonies that invoke the prohibition of the statute. And, with the possible exception of a couple of items not immediately relevant, the laundry list of subdivision (c) fits nicely into this construct: we immediately recognize most items on the list as discrete crimes or enhancements that are pleaded routinely.
We do not, however, expect to find the object of a crime pleaded unless it is an element or a statutorily recognized enhancement. Since the majority's position is that burglary of a “residence” is not an element (nor heretofore a recognized enhancement), the majority's position cannot be reconciled with the reasonable language of the statutes and is therefore untenable.
Thus, in my view, section 1192.7 clearly alludes to discrete crimes and enhancements, and section 667 also envisions the five-year enhancement shall be imposed for prior “convictions” for those discrete crimes and enhancements. At the time of passage of proposition 8, no California statute defined “burglary of a residence” as a crime. The reference in subdivision (c)(18) of section 1192.7 to “burglary of a residence” is obviously a drafting error and should be frankly acknowledged to be such.
In this process of determining what to do about this statutory faux pas, we should keep some rules in mind. Sections 667 and 1192.7 are simply statutes—no more, no less. The fact that these statutes were inacted by initiative is immaterial; the statutes impose serious criminal penalties and are subject to venerable rules of construction applicable to penal statutes. (See Carlos v. Superior Court (1983) 35 Cal.3d 131, 145–146, 197 Cal.Rptr. 79, 672 P.2d 862.) Thus, for example, in the interpretation of statutes that impose increased penalties for prior convictions, “the rule is established that when language which is reasonably susceptible of two constructions is used in a penal law ordinarily that construction which is more favorable to the offender will be adopted. The defendant is entitled to the benefit of every reasonable doubt, whether it arise out of a question of fact, or as to the true interpretation of words or the construction of language used in a statute. (People v. Stuart (1956), 47 Cal.2d 167, 175 [302 P.2d 5, 55 A.L.R.2d 705]; People v. Smith (1955), 44 Cal.2d 77, 79 [279 P.2d 33]; In re Bramble (1947), supra, 31 Cal.2d 43, 51 [187 P.2d 411]; In re McVickers (1946) supra, 29 Cal.2d 264, 278 [176 P.2d 40]; People v. Valentine (1946), 28 Cal.2d 121, 143 [169 P.2d 1]; People v. Ralph (1944), 24 Cal.2d 575, 581 [150 P.2d 401].)” (In re Tartar (1959), 52 Cal.2d 250, 256–257, 339 P.2d 553.)
The majority rides roughshod over these established rules. The majority's construction gives the benefit of every reasonable statutory doubt to the prosecution, not the defendant. Undoubtedly, the majority takes this view because we are construing a portion of a “get-tough-on-crime” initiative passed by the people; the majority laudibly wishes to interpret the statutes in accord with the general intent of the initiative, even though they can point to no history of the initiative to support their interpretation of the specific statutes at issue.
We would do better to be more realistic about initiatives and more wary of departing from time-honored rules of statutory construction grounded in constitutional principles of due process of law. Initiatives have their pros and cons. One of the cons is that, because the initiative process dispenses with the critical scrutiny provided by legislative committee hearings and debate, errors in draftsmanship are more likely to occur. That happened here. We should simply accept that fact and chalk it up as an unsurprising consequence of the initiative process. We should not discard a venerable body of law bearing upon the interpretation of penal statutes in order to cram “burglary of a residence” within the inappropriate confines of second degree burglary.
As noted, no statute defined “burglary of a residence” when defendant committed his crime. I agree with the majority that burglary of a “residence” is reasonably and fairly equated with burglary of an “inhabited dwelling house.” The terms had been used synonymously by the courts. (See, e.g., People v. Allard (1929) 99 Cal.App. 591, 592, 279 P.2d 182.) That prior judicial construction is sufficient to provide due process notice to a defendant of the offense of which he is charged. (People v. Guthrie (1983) 144 Cal.App.3d 832, 839, 193 Cal.Rptr. 54; In re Davis (1966) 242 Cal.App.2d 645, 653, 51 Cal.Rptr. 702.)
However, “inhabited dwelling house” does not appear in section 459, defining burglary. Indeed, even the term “dwelling house” does not appear in section 459. The term is used exclusively in section 460, subdivision (1), which provides in pertinent part, “Every burglary of an inhabited dwelling house ․ is burglary of the first degree.” In my view, “burglary of a residence” must be construed to mean “first degree burglary of an inhabited dwelling house.” It is immaterial whether burglary of an inhabited dwelling house may or may not also be a second degree burglary.3 (See People v. Lee (1984) 150 Cal.App.3d 455, 197 Cal.Rptr. 766.) The statute defining second degree burglary does not refer to an “inhabited dwelling house,” whereas the statute defining first degree burglary does. That difference in statutory language presents ambiguity. Indeed, the ambiguity is precisely what has produced “the already discordant appellate requiem for serious felonies and residential burglaries” among the courts of appeal, as the majority notes. The defendant is entitled to the benefit of every reasonable doubt in the construction of the statute. (In re Tartar, supra.) The statute must therefore be construed to refer to the more serious offense of first degree burglary. That is the end of the matter.
The foregoing assumes first degree burglary of an inhabited dwelling is a discrete felony. I disagree with the majority as to the definition of the “crime” of burglary and its elements. Although section 460 purports to define different “degrees” of a single “crime,” first and second degree burglary have traditionally been recognized as distinct crimes, each containing its own constituent elements. (See People v. Vertrees (1915) 169 Cal. 404, 146 P. 890.) Thus, for example, in Vertrees, the court concluded that, under the statute then applicable, one of the essential elements of the crime of first degree burglary was entry of a building in the nighttime. (P. 413, 146 P. 890.)
That approach serves common sense. It is in accord with the established notion that first degree murder is a distinct crime, usually requiring a specific intent to kill as an element of the offense. (See People v. Gorshen (1959) 51 Cal.2d 716, 732–733, 336 P.2d 492.)
I agree with the majority that the elements of a crime consist of those acts forbidden by the defining statute. In my view, entry of an inhabited dwelling house is one necessary element of the crime of first degree burglary. Thus, for example, one cannot commit the crime of first degree burglary by entering an uninhabited dwelling (People v. Cardona (1983) 142 Cal.App.3d 481, 191 Cal.Rptr. 109) or even an inhabited boat. Section 460 says the crime is committed only where one burgles an inhabited dwelling house or trailer coach or the inhabited portion of any other building. Entry of one of these described structures is therefore a necessary element of the offense.
The majority argues, “Just as one can commit murder without using a firearm, so too one can commit burglary without entering a residence.” The majority confuses the instrumentalities used to commit a crime with the object of crime defined by statute to constitute one of its elements. An appropriate analogy would be to point out that just as one cannot commit the crime of murder by killing a monkey, so, too, one cannot commit a first degree burglary without entering an inhabited structure defined in section 460.
To the extent it suggests first degree burglary is not a separate offense with constituent elements, I believe People v. Scofield (1983) 149 Cal.App.3d 368, 196 Cal.Rptr. 812 is incorrect, although its result is right. In Scofield, defendant was convicted of first degree burglary, which then required nighttime entry. Defendant contended entry in the nighttime was a part of the corpus delicti and had to be proved by evidence independent of his confession.
Rejecting that contention, Scofield, 149 Cal.App.3d at p. 371, 196 Cal.Rptr. 812 relied on a series of cases holding that, in prosecutions for murder, the corpus delicti could be proved simply by showing the death of the alleged victim and the existence of some criminal agency as the cause. (See, e.g., People v. Scott (1969) 274 Cal.App.2d 905, 79 Cal.Rptr. 587; People v. Bolinski (1968) 260 Cal.App.2d 705, 715, 67 Cal.Rptr. 347; People v. Williams (1957) 151 Cal.App.2d 173, 177, 311 P.2d 117.) These cases do not mention the elements of any offense. Indeed, they stand for the proposition that proof of the corpus delicti may be satisfied by a showing that excludes proof of various elements necessary to convict for the crime of murder. (See, e.g., Ureta v. Superior Court (1962) 199 Cal.App.2d 672, 676, 18 Cal.Rptr. 873 [no proof of malice necessary to prove corpus delicti in prosecution for murder].) These cases are consistent with the purpose of the corpus delicti rule, which is to insure that a defendant will not be convicted solely upon his confession when no crime at all has been committed. (See People v. Jones (1867) 31 Cal. 565, 567–568.) Since, in Scofield, independent evidence established at least a second degree burglary had been committed, defendant's confession was properly admitted. To the extent the case suggests entry in the nighttime was not then an element of first degree burglary, I believe the conclusion is unsupported by the authorities cited and inconsistent with People v. Vertrees, supra, 169 Cal. 404, 146 P. 890, a case which Scofield attempts to distinguish in an unpersuasive footnote. (See Scofield, supra, 149 Cal.App.3d at p. 372, fn. 3, 196 Cal.Rptr. 812.)
Nor do I believe my conclusion is inconsistent with People v. Crowson (1983) 33 Cal.3d 623, 190 Cal.Rptr. 165, 660 P.2d 389 or In re Finley (1968) 68 Cal.2d 389, 66 Cal.Rptr. 733, 438 P.2d 381, upon which Crowson relied. I read these cases more broadly than the majority. I think they stand for the proposition that, under California law, a plea of guilty to an accusatory pleading admits only the least adjudicated elements of the offense to which the plea is entered. (Crowson, 33 Cal.3d at p. 634, 190 Cal.Rptr. 165, 660 P.2d 389; Finley, 68 Cal.2d at p. 393, 66 Cal.Rptr. 733, 438 P.2d 381.)
Where a guilty plea is entered to a first degree burglary, how, then, do we establish that the crime was “of an inhabited dwelling?” First, if the information unambiguously pleads defendant burglarized an inhabited dwelling, defendant admits the allegation by his plea, which constitutes an adjudication. (In re Gilliam (1945) 26 Cal.2d 860, 865–866, 161 P.2d 793.) Crowson is not to the contrary. It holds that one cannot admit by a plea of guilty allegations in an accusatory pleading that are not elements of an offense required to be pled, so that the allegations constitute surplusage. (Crowson, supra, 33 Cal.3d at p. 634, 190 Cal.Rptr. 165, 660 P.2d 389.) Since an inhabited structure defined by section 460 is an element of the offense, it must be pled and its admission by a defendant constitutes an adjudication.
What if the information charges first degree burglary but is ambiguous as to the nature of the inhabited structure entered? I believe Crowson is limited to a consideration of the scope of an adjudication by plea of guilty to an accusatory pleading. There are other ways to ascertain whether the requisite element of an offense was adjudicated in a prior proceeding. For example, an element can be expressly admitted in open court independently of a plea of guilty. (See In re Boatwright (1932) 216 Cal. 677, 681, 15 P.2d 755; People v. Birdsell (1935) 6 Cal.App.2d 749, 750, 45 P.2d 378; People v. Harvey (1934) 137 Cal.App. 22, 24–25, 29 P.2d 787, see also People v. Allen (1953) 119 Cal.App.2d 365, 368, 259 P.2d 474; People v. Spalis (1943) 56 Cal.App.2d 869, 874, 133 P.2d 679.) Or it can be proved in the prior proceeding.4 (See People v. Spalis, supra, 56 Cal.App.2d at pp. 873–874, 133 P.2d 679.) Each method has been found to constitute a sufficient adjudication of a necessary element to support additional punishment under habitual criminal statutes. (See In re Tartar, supra, 52 Cal.2d at p. 256, 339 P.2d 553.)
Since defendant was not convicted of a first degree burglary of an inhabited dwelling in the instant proceeding, he has not been convicted of a “burglary of a residence” within the meaning of section 1192.7. He was therefore not convicted of a “serious felony” in the instant proceeding and section 667, subdivision (a) is consequently inapplicable. The five-year enhancement mandated by the latter statute was improperly imposed and should be stricken.
1. See People v. Jackson (Crim. 23622, hg. granted March 29, 1984) [4 Crim. 15360 Div. 1]; People v. Lee (1984) 150 Cal.App.3d 455, 197 Cal.Rptr. 766; People v. O'Bryan (Crim. 23621, hg. granted March 29, 1984) [2 Crim. 43580 Div. 2]; People v. Johnson, 1 Crim. 22649, hg. granted May 17, 1982, [2 Crim. 43604, Div. 5]; People v. Nunley (April 23, 1984, 1 A020511 Div. 3) ].
2. Penal Code section 667 provides in relevant 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.”Penal Code section 1192.7, subdivision (c) reads in pertinent part: “(c) As used in this section ‘serious felony’ means any of the following: ․ (18) Burglary of a residence; ․ (25) Any attempt to commit a crime listed in this subdivision other than an assault.”Unless otherwise noted, all further statutory references are to the Penal Code.
3. The People assert that defendant may not appeal because he failed to obtain a certificate of probable cause pursuant to section 1237.5. We disagree. Defendant's admission of the prior conviction does not bar him from challenging the propriety of the enhancement. “Past cases have established that such a stipulation does not preclude a defendant from later demonstrating that the increased punishment which he received is unwarranted because his prior conviction does not fall within the class of convictions for which the statute authorizes such punishment. (Citations.)” (People v. Crowson (1983) 33 Cal.3d 623, 627, fn. 3, 190 Cal.Rptr. 165, 660 P.2d 389.) Nor does section 1237.5 preclude defendant from contending on appeal that his plea of guilty to the crime of burglary did not constitute an admission that the offense was a serious felony. The high court has “held that section 1237.5 does not apply where a defendant does not challenge the original validity of the plea but asserts the errors were committed in proceedings subsequent to the plea for the purpose of determining the penalty to be imposed. (Citations.)” (People v. Kaanehe (1977) 19 Cal.3d 1, 8, 136 Cal.Rptr. 409, 559 P.2d 1028.) Section 1237.5 has no application here because defendant challenges only the post plea determinations concerning the serious felony enhancement and does not contend that his guilty plea is invalid.
4. The factual circumstances are not in dispute. The facts we recite are taken where appropriate from both the preliminary hearing transcript and the probation report.
5. The court did not determine the degree of the crime. By operation of law, the degree of that attempted burglary was therefore fixed at second degree. Section 1192 directs that “[u]pon a plea of guilty ․ of a crime or attempted crime distinguished or divided into degrees, the court must, before passing sentence, determine the degree. Upon the failure of the court to so determine, the degree of crime or attempted crime of which the defendant is guilty, shall be deemed to be of the lesser degree.”
6. Section 459 provides in relevant part that “[e]very person who enters any house ․ with [the requisite] intent ․ is guilty of burglary.” Section 460 further provides that “[e]very burglary of an inhabited dwelling house ․ is burglary of the first degree.”
7. A crime in California is “an act committed or omitted in violation of a law forbidding or commanding it, and to which is annexed, upon conviction, ․ [specified] punishments.” (Pen.Code, § 15.) In addition to that act, in order to constitute a crime “there must exist a union, or joint operation of act and intent, or criminal negligence.” (Pen.Code, § 20.) The elements of a crime therefore consist of those acts forbidden or commanded by the defining statute coupled with the required intent. “Every crime consists of a group of elements laid down by the statute or law defining the offense and every one of these elements must exist or the statute is not violated. This group of essential elements is known as the ‘corpus delicti,’ the body or the elements of the crime․ Generally the definition of a crime very clearly lists the elements of the corpus delicti of that crime ․” (Fricke, Cal.Crim.Law (Alarcon 10th rev. ed. (1970) p. 26; see also 1 Witkin, Cal.Crimes, (1963) Elements of Crime, § 88, p. 84.)In California “[e]very person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, railroad car, trailer coach, as defined in Section 635 of the Vehicle Code, any house car, as defined in Section 362 of the Vehicle Code, inhabited camper, as defined by Section 243 of the Vehicle Code, vehicle as defined by the Vehicle Code when the doors of such vehicle are locked, aircraft as defined by the Harbors and Navigation Code, mine or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary.” (§ 459.) Thus, “[t]he essential elements of burglary under the statute are (1) an entry, (2) of a building or structure enumerated in the statute, and (3) with the intent to commit grand or petit larceny or any felony.” (21 Cal.Jur.3d, Criminal Law, § 2490, p. 251, fns. omitted.)
8. In People v. Lee (1984) 150 Cal.App.3d 455, 458, 197 Cal.Rptr. 766, the Court of Appeal for the First District held that second degree burglary was not a serious felony because it “does not have as an element entry of a residence; therefore, that issue was not necessarily litigated in proving defendant's guilt. The prosecutor [under Crowson ] may not go behind the unadjudicated element to show that defendant committed a greater offense.” In our view, the Lee court has uprooted the Crowson flower from its statutory garden and attempted to transplant it in the barren soil of the bed of a wholly different statute. There, “[l]ike roses, that in Desarts bloom and die”, it withers. (Pope, Rape of the Lock, canto IV, 1, 158.)
9. That residential burglaries had reached epidemic proportions in California is confirmed by these figures: There were 543,846, 539,809, and 499,468 reported burglaries in California in the years 1980, 1981 and 1982, respectively. Of those convicted and incarcerated for burglaries in those years, over 65 percent were for residential burglaries. (Cal.Dept. of Justice, Criminal Justice Profile, 1982, p. 5; Cal.Dept. of Justice, Crime and Delinquency in California, 1981, Table 17, p. 99; Assembly Office of Research, Alternative Forms of Punishment, The Costs and Benefits of Prison Sentences for Burglars, Report # 1 (Feb.1984) pp. 12–13.)
10. Section 1170.95 (formerly one of four sections numbered 1170.8), now defines the term “residential burglary” as “burglary in the nighttime or a felony burglary in the daytime, of an inhabited dwelling house or trailer coach, as defined in section 635 of the Vehicle Code, or the inhabited portion of any other building.” (Stats.1983, ch. 142, § 122, p. 44.) This section exempts sentences imposed on certain persons convicted of “residential burglary” from the computational limitations on sentences for nonviolent felonies contained in subdivisions (a) and (g) of section 1170.1.
11. Ignoring the phrase “burglary of a residence”, the dissent claims that the statutory language does not even remotely suggest that the object of the crime should ever be considered. Instead, the dissent divines out of whole cloth a statutory faux pas caused by bungled draftsmenship. This it would cure by rewriting the subdivision to read “First degree burglary of an inhabited dwelling house.” But from 1923 to July 1977, “every burglary, whether in the daytime or nighttime, committed by a person armed with a deadly weapon, or who while in the commission of such burglary arms himself with a deadly weapon, or who while in the commission of such burglary assaults any person, is [also] burglary of the first degree.” (Former Pen.Code, § 460, subd. 1; Stats.1923, ch. 362, § 1, p. 747; Stats.1976, ch. 1139, § 206.5, p. 5120, operative July 1, 1977.) Thus the dissent implicitly concedes, as it must, that the phrase cannot simply be judicially rewritten to read “First degree burglary.” The dissent's redrafted version merely substitutes one object of the crime for another. The force of the argument that it is proper to show that the place burgled was an “inhabited dwelling house” but improper to establish that it was a “residence”, when those terms are conceded to be synonymous, is lost upon us. It is the place of the burglary, not its degree, that is made critical by the statute. Both burglaries in this case were of inhabited dwelling houses and neither the defense nor the dissent claims otherwise.
12. Section 1170.1, subdivision (g) reads: “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, 12022.6 or 12022.7 or the defendant stands convicted of felony escape from an institution in which he is lawfully confined.”
13. In this case we are concerned with a serious felon who has previously been convicted of a serious felony. We hold that Penal Code section 667 and article I, section 28, subdivision (f) of the Constitution require that the prison term be enhanced by five years without regard to the limitation of section 1170.1, subdivision (g). We need not, and do not, consider the People's contention that article I, section 28, subdivision (f) of the Constitution repealed the limitation in section 1170.1, subdivision (g) for all purposes.
1. All further nondescript statutory references are to the Penal Code.
2. Section 667 provides: “(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.“(b) This section shall not be applied when the punishment imposed under other provisions of law would result in a longer term of imprisonment. There is no requirement of prior incarceration or commitment for this section to apply.“(c) The Legislature may increase the length of the enhancement of sentence provided in this section by a statute passed by majority vote of each house thereof.“(d) As used in this section ‘serious felony’ means a serious felony listed in subdivision (c) of Section 1192.7.“(e) The provisions of this section shall not be amended by the Legislature except by statute passed in each house by rollcall vote entered in the journal, two-thirds of the membership concurring, or by a statute that becomes effective only when approved by the electors.”Section 1192.7 provides: “(a) Plea bargaining in any case in which the indictment or information charges any serious felony or any offense of driving while under the influence of alcohol, drugs, narcotics, or any other intoxicating substance, or any combination thereof, is prohibited, unless there is insufficient evidence to prove the people's case, or testimony of a material witness cannot be obtained, or a reduction or dismissal would not result in a substantial change in sentence.“(b) As used in this section ‘plea bargaining’ means any bargaining, negotiation, or discussion between a criminal defendant, or his or her counsel, and a prosecuting attorney or judge, whereby the defendant agrees to plead guilty or nolo contendere, in exchange for any promises, commitments, concessions, assurances, or consideration by the prosecuting attorney or judge relating to any charge against the defendant or to the sentencing of the defendant.“(c) As used in this section ‘serious felony’ means any of the following:“(1) Murder or voluntary manslaughter; (2) mayhem; (3) rape; (4) sodomy by force, violence, duress, menace, or threat of great bodily harm; (5) oral copulation by force, violence, duress, menace, or threat of great bodily harm; (6) lewd acts on a child under the age of 14 years; (7) any felony punishable by death or imprisonment in the state prison for life; (8) any other felony in which the defendant inflicts great bodily injury on any person, other than an accomplice, or any felony in which the defendant uses a firearm; (9) attempted murder; (10) assault with intent to commit rape or robbery; (11) assault with a deadly weapon or instrument on a peace officer; (12) assault by a life prisoner on a noninmate; (13) assault with a deadly weapon by an inmate; (14) arson; (15) exploding a destructive device or any explosive with intent to injure; (16) exploding a destructive device or any explosive causing great bodily injury; (17) exploding a destructive device or any explosive with intent to murder; (18) burglary of a residence; (19) robbery; (20) kidnapping; (21) taking of a hostage by an inmate of a state prison; (22) attempt to commit a felony punishable by death or imprisonment in the state prison for life; (23) any felony in which the defendant personally used a dangerous or deadly weapon; (24) selling, furnishing, administering or providing heroin, cocaine or phencyclidine (PCP) to a minor; (25) any attempt to commit a crime listed in this subdivision other than an assault.“(d) The provisions of this section shall not be amended by the Legislature except by statute passed in each house by rollcall vote entered in the journal, two-thirds of the membership concurring, or by a statute that becomes effective only when approved by the electors.”
3. The fact that nighttime entry was necessary for first degree burglary at the time the crimes here were committed is also immaterial. The crucial point is that “inhabited dwelling house” did not appear in section 459, defining second degree burglary.
4. For present purposes, the discussion is limited to whether a requisite adjudication occurred in a prior proceeding. I do not suggest that the People may, in a current proceeding, prove that defendant in fact burglarized an inhabited dwelling in a prior proceeding in which the nature of the structure entered was not adjudicated on the record.
SPARKS, Associate Justice.
REGAN, Acting P.J., concurs.