PEOPLE v. SMITH

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Court of Appeal, Fourth District, Division 3, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Michael Lynn SMITH, Defendant and Appellant.

No. G001208.

Decided: October 31, 1985

Kimberly J. Grove, San Diego, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Harley D. Mayfield, Asst. Atty. Gen., Maxine P. Cutler and David I. Friedenberg, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

When the prosecution pursues a sentence enhancement under Penal Code section 667 2 based on a prior “burglary of a residence” (see § 1192.7, subd. (c)(18)), what portion of the prior record may be used (and what must it show) to demonstrate the burglary was residential?   We conclude the information, plea forms and transcript of the sentencing may be used.   These documents showed each of Smith's prior burglaries was of a residence.   Consequently, we affirm imposition of the enhancements.

I

The information charged appellant Michael Lynn Smith with three counts of residential burglary.  (§ 459.)   It was also alleged Smith suffered four prior serious felony convictions for “burglary of a residence,” each calling for a five-year enhancement pursuant to Proposition 8's section 667.   Each of the convictions occurred before passage of Proposition 8.   In addition, the information alleged a prior serious felony of escape.  (§ 4530, subd. (b).)

Smith's first jury trial ended in a mistrial when the judge was unable to complete it.   Prior to the second jury trial, the judge granted Smith's motion to bifurcate the guilt trial on the charged burglaries from the trial on the truth of the alleged prior felony convictions.  (See People v. Bracamonte (1981) 119 Cal.App.3d 644, 174 Cal.Rptr. 191.)   The court also ruled all Smith's prior felony convictions were admissible for purposes of impeachment at the guilt phase.3

The jury found Smith guilty of two counts of first degree residential burglary and one count of second degree burglary.4  The facts need not be recounted in any detail.   On March 31, 1983, Smith burglarized a family residence.   At trial he admitted committing the burglary.   A second family residence was burglarized twice on April 6, 1983.   At trial Smith admitted committing the afternoon burglary, but denied committing one earlier that same morning.

At trial on the truth of the prior serious felony enhancement allegations, the jury found the residential burglary allegations to be true.   During deliberations, Smith admitted the truth of the escape allegation, which was also amended to bring it within the provisions of section 667.5, subdivision (b).

Smith was given the following sentence:  four years on one count of burglary and a consecutive term of one year and four months on the other burglary;  three consecutive five-year terms for three of the residential burglary enhancements and one concurrent five-year term for the remaining residential burglary enhancement;  the court struck the escape enhancement.   Hence, Smith received a prison sentence of 20 years and 4 months.

II

The phrase “burglary of a residence” contained in section 1192.7, subdivision (c)(18), incorporated into section 667, was recently interpreted in People v. Jackson (1985) 37 Cal.3d 826, 210 Cal.Rptr. 623, 694 P.2d 736.   Jackson was charged with residential burglary and three prior second degree burglaries, each of which was alleged to be “a residential burglary.”  (Id., at p. 830, 210 Cal.Rptr. 623, 694 P.2d 736.)   Jackson agreed to plead to second degree residential burglary and admit one of the charged priors was a second degree residential burglary;  he reserved the right to challenge whether a second degree burglary could be “burglary of a residence” within the meaning of sections 667 and 1192.7.  (Id., at p. 831, 210 Cal.Rptr. 623, 694 P.2d 736.)   The Supreme Court held the enhancement was proper because Jackson admitted, in the present proceeding as part of a negotiated plea, the second degree burglary prior involved a residence.  (Id., at p. 835, 210 Cal.Rptr. 623, 694 P.2d 736.)

However, the Supreme Court also examined the problems presented where the prosecution seeks to prove a pre-Proposition 8 second degree burglary is a “burglary of a residence.”  “Crowson 5 established two propositions relevant to the present case:  (1) that proof of a prior conviction establishes only the minimum elements of the crime, even if the charging pleading contained additional, superfluous allegations;  and (2) that the prosecution cannot go behind the record of the conviction and relitigate the circumstances of the offense to prove some fact which was not an element of the crime.   The parties dispute whether these propositions bar the prosecutor from establishing that either defendant's current burglary, or his prior burglary, involved entry into a residence.”  (Id., at p. 834, 210 Cal.Rptr. 623, 694 P.2d 736.)  “With respect to a prior burglary conviction, however, especially one such as defendant's which antedates Proposition 8, proof of the residential character of the burglary encounters obstacles.   The record of a conviction for second degree burglary would not prove entry into a residence, even if the pleadings included superfluous allegations to that effect.  [Citation.]  Moreover, the People could not go behind that record to prove a fact which was not then an element of the crime.  [Citations.]  A contrary holding, permitting the People to litigate the circumstances of a crime committed years in the past, would raise serious problems akin to double jeopardy and denial of speedy trial.”  (Id., at p. 836, 210 Cal.Rptr. 623, 694 P.2d 736, fn. omitted.)

Several questions immediately become apparent:  what comprises the “record of conviction?”   What constitutes going “behind the record” to prove a residential burglary?   And what constitutes forbidden relitigation of facts concerning the prior offense?

These questions were recently addressed in People v. Munoz (1985), 173 Cal.App.3d 331, 220 Cal.Rptr. 16.6  The court makes a thorough analysis of the underpinnings for the Crowson-Jackson dicta.   The Munoz court concludes the prosecution may use the information and probation report to establish the residential nature of a prior burglary to which the defendant pled.   This is consistent with the same court's ruling in People v. Guillen (1985) 172 Cal.App.3d 29, 41–44, 218 Cal.Rptr. 113:  “Ordinarily, the state may offer to prove the existence of a fact by any evidence which conforms to the rules of evidence or is not subjected to a timely evidentiary objection or motion to strike or exclude.  (Pen.Code, § 1102;  Evid.Code, § 353.)   The Crowson decision affects the admissibility of evidence only in so far as it makes evidence of a defendant's actual conduct underlying a prior foreign felony conviction immaterial and irrelevant under Penal Code section 667.5 and susceptible to an evidentiary objection on those grounds.   The proof limitation suggested in Crowson logically has no applicability where ‘offense’ as used in a habitual offender statute refers to actual conduct underlying a prior conviction, as was held in People v. Jackson, supra, 37 Cal.3d 826 [210 Cal.Rptr. 623, 694 P.2d 736].  [¶]  Defendant does not raise any constitutional objections which might bar the People from offering any available competent evidence in addition to a judgment of conviction.   Official court records, such as a probation report, may well be probative on the issue of the residential character of a prior burglary, assuming any evidentiary objections can be overcome.”  (People v. Guillen, supra, at pp. 43–44, 218 Cal.Rptr. 113, fn. omitted.)

Another court of appeal panel, while relying on a somewhat different rationale, adopted a similar approach.   In People v. Longinetti (1985) 164 Cal.App.3d 704, 210 P.2d 729, the prior judgment of conviction said in pertinent part:  “ ‘․ Whereas the said defendant having duly pleaded guilty in this court of the crime of burglary, of the second degree, In Violation of Section 459, Penal Code, a Felony, as Charged in the Information, It is Therefore Ordered, Adjudged and Decreed that the said defendant be punished by imprisonment in the State Prison․’  (Italics added.)”  (Id., at p. 706, 210 Cal.Rptr. 729.)

The Longinetti majority held “[b]y specific reference thereto the information is incorporated in the prior judgment.   The judgment thus clearly, specifically, and unambiguously incorporates the specific elemental fact which it finds.”  (Ibid.)

Thus, the Longinetti majority indicates “[n]o ‘going behind’ the judgment is necessary.”  (Ibid.)  It indicates Crowson does not prohibit examining other pages of the record incorporated in the judgment by limiting examination to the “face” of the prior judgment.  (People v. Longinetti, supra, at p. 707, 210 Cal.Rptr. 729.)

The following language is particularly instructive:  “In Jackson the court states ‘We first consider the question whether—and under what circumstances—a court can treat a conviction for second degree burglary as a “burglary of a residence,” invoking the serious felony enhancement of section 667.’   [Citation.]  [¶]  Reasonableness would dictate that one answer should be that a reviewing court can treat a conviction for second degree burglary as a burglary of a residence when the prior allegation so says that it is by use of specific words and the defendant admitted such specifically worded charge at the time that it was made.  [¶]  We recognize that in its dicta the opinion of Jackson pays homage to the dicta of Crowson in part as follows:  ‘The record of a conviction for second degree burglary would not prove entry into a residence, even if the pleadings included superfluous allegations to that effect.’  [Citation.]  Nonetheless, we have explained above, first, that in the instant case the People did not go behind the record of the prior judgment, and secondly the prior allegation was not simply of burglary but of residential burglary.   Although at the time of the prior the description of the type of burglary as residential may have been superfluous, in the sense that it was not then necessary to merely charge a burglary whether of first or second degree, it was not, on the other hand, superfluous in the sense of clearly and fairly telling an accused of what crime, and why, he is charged.   The information in the prior case gave defendant notice of specific conduct charged which he admitted.   The fact of that conduct is certainly not now superfluous.   Accordingly, as earlier indicated, we do not see Crowson as does the dicta of Jackson as an obstacle to the ‘proof of the residential character of the burglary’ by use of the record of the prior conviction in this case.”   (People v. Longinetti, supra, 164 Cal.App.3d 704, 708, 210 Cal.Rptr. 729, fn. omitted.)

The Longinetti dissenter finds Jackson and Crowson dispositive, concluding these opinions condemn “albeit in dicta,” use of the enhancement.   (Id., at pp. 704, 708–709, 210 Cal.Rptr. 729, dis. opn. of Gates, J.)   The Supreme Court denied a petition for review in Longinetti.7

People v. Brown (1985) 169 Cal.App.3d 313, 215 Cal.Rptr. 150 rejects the holding of Longinetti and implicitly Munoz and Guillen as well.  “The [Jackson ] court held that the defendant was subject to a serious felony enhancement because he had expressly admitted in the current proceeding that a prior alleged burglary involved burglary of a residence.  [Citation.]  [¶]  Our review of the present record, however, reveals no such express admission.   Though the documents introduced below included the information pertaining to the first prior which alleged burglary of a residence, Jackson makes clear that the residence allegations were superfluous in 1981 and thus may not be used now to uphold the current enhancements.   Absent the express admission which Jackson requires, we must conclude that the serious felony enhancement was improperly imposed.  [¶]  Respondent argues that the defense stipulation that the trial court could judicially notice the superior court file pertaining to the first prior conviction ․ constituted the express admission which Jackson requires.   The language of Jackson makes clear that the Supreme Court requires that the defendant personally and expressly admit that the prior burglary involved entry into a residence.   At no point in the current proceedings did appellant personally or expressly admit this fact.  [¶] Respondent's position would give a distorted, unwarranted meaning to the Supreme Court's requirement of an express admission, circumvent the Supreme Court's bar on going behind the record of conviction to prove a fact not an element of the crime when the defendant was convicted, defeat the purpose of having a contested trial on the prior, and, ironically, give the defendant contesting a prior less protection than that to which he would be constitutionally entitled where he admits a prior.  [Citation.]”  (People v. Brown, supra, at p. 316, 215 Cal.Rptr. 150, first emphasis added.)

The Brown court also discusses the term “record of the conviction”:  “Respondent also argues that appellant's ‘prior judgment of conviction clearly recites that appellant was found guilty of residential burglary.’   Respondent does not specify the matters to which the general phrase ‘prior judgment of conviction’ refers.   In People v. Jackson, supra, 37 Cal.3d 826, 210 Cal.Rptr. 623, 694 P.2d 736, the Supreme Court used the term ‘record of the conviction,’ but did not specify its parameters.   What the court did make unmistakably clear is that ‘The record of a conviction for [a pre-Proposition 8] second degree burglary would not prove entry into a residence, even if the pleadings included superfluous allegations to that effect.’   [Citation.]

“․

“Since appellant was convicted of a pre-Proposition 8 second degree burglary, it follows from Jackson that the record of this conviction would not prove entry into a residence, even though the information ․ alleged the burglary of a residence.   When appellant in 1981 pled guilty to that information, the residence allegation was ‘entirely immaterial surplusage, and [appellant] would have had no reason or incentive to contest [it] in the [1981] proceeding.’   [Citation.]”  (People v. Brown, supra, 169 Cal.App.3d 313, 316–317, 215 Cal.Rptr. 150.) 8  The Supreme Court also denied a petition for review in Brown.

III

 We adopt the approach of Munoz, Guillen and the Longinetti majority.   We agree “[r]easonableness would dictate ․ a reviewing court can treat a conviction for second degree burglary as a burglary of a residence when the prior allegation so says that it is by use of specific words and the defendant admitted such specifically worded charge at the time that it was made.”  (People v. Longinetti, supra, 164 Cal.App.3d 704, 708, 210 Cal.Rptr. 729.)

 Thus, the “record of conviction” includes the documentary evidence, including reporter's transcripts, necessary to demonstrate a valid guilty plea.   This includes the advisement and waiver of rights, admission of the offense and determination of a factual basis for the plea.   Utilizing these documents does not constitute going “behind the record” as that term is used in the Jackson and Crowson dicta.   The prosecution's proof of the residential nature of the conviction in this manner is not a relitigation of facts.

Applying this approach to the present case, each of the second degree burglary prior allegations is a valid section 667 enhancement:

THE AUGUST 16, 1976, PRIOR:

Smith was convicted of second degree burglary.   Both the complaint and information alleged burglary of a residence.   On the Tahl form (In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449) Smith specifically admitted he burglarized a residence and the minutes reflect the court found a factual basis for the residential burglary allegation.

THE NOVEMBER 13, 1978, PRIOR:

Smith was convicted of second degree burglary.   The information charged burglary of a residence and on the Tahl form, Smith specifically admitted he entered a residence with the intent to commit theft.

THE FEBRUARY 13, 1979, PRIOR:

Smith was convicted of second degree burglary.   The count on the information to which he pleaded alleged a residential burglary.   On the Tahl form Smith specifically admitted entering a residence with the intent to commit larceny and he repeated this admission at the sentencing hearing.

Each of these priors involved burglary of a residence.   Consequently, the five-year enhancements for these prior convictions are valid.

IV

 We turn now to an examination of the fourth prior.9  We have no difficulty determining the May 14, 1973, prior is a valid enhancement within the meaning of sections 667 and 1192.7, subdivision (c)(18).   The parties overlook the impact of a salient point about this prior:  it is a first degree burglary conviction.   At the time, a first degree burglary could be committed in any of the following ways:  burglary of a residence in the nighttime, armed burglary or burglary accompanied by assault.10  Therefore, the pleading alleging burglary of a residence was not superfluous—it was a necessary element of first degree burglary.11  Thus, the reasoning of Crowson and Jackson, limited to second degree burglary, is inapposite.

Jackson's companion case, People v. O'Bryan (1985) 37 Cal.3d 841, 210 Cal.Rptr. 450, 694 P.2d 135, inferentially supports this conclusion.   There, too, the prior conviction was for first degree burglary.   At the time of that prior (1980), first degree burglary could only be committed by entering a “residence” in the nighttime.   The Supreme Court concluded this was “burglary of a residence” within the meaning of Proposition 8 as a matter of law.   (Id., at pp. 844–845, 210 Cal.Rptr. 450, 694 P.2d 135;  see also People v. Garner, supra, 165 Cal.App.3d 145, 150, 211 Cal.Rptr. 267.)   The charging document alleged burglary of a residence in order to establish first degree burglary.   Smith pleaded guilty.   This is a proper section 667 sentence enhancement.

V 12

FOOTNOTES

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

3.   Smith also contests this ruling, which we discuss, post.

4.   Smith's motion for a new trial was granted on the second degree burglary and that count was dismissed.

5.   People v. Crowson (1983) 33 Cal.3d 623, 190 Cal.Rptr. 165, 660 P.2d 389.

6.   This issue is also pending in the Supreme Court.  (People v. Calio, Rev. granted August 1, 1985, Crim. 24711;  People v. Richard, Rev. granted August 1, 1985, Crim. 24712;  People v. Thomas, Rev. granted August 1, 1985, Crim. 24713.)

7.   People v. Crane (1985) 163 Cal.App.3d 667, 209 Cal.Rptr. 585, filed two weeks before Jackson, is consistent with Longinetti.   Apparently, no review was sought.   In Crane, the court examines several of the documents, including the change of plea form and the reporter's transcript of the plea.   The court distinguishes Crowson with an expansive reading of “record of conviction.”

8.   People v. Garner (1985) 165 Cal.App.3d 145, 211 Cal.Rptr. 267, predates Brown and is consistent with it.  Garner is a “by the Court” opinion (as was Brown) from the same district with the “court” in each being two of the same justices.   The Garner opinion, on its somewhat different facts, reflects a similar approach to Crowson and Jackson.

9.   This enhancement was ordered to run concurrently with the others.

10.   At that time, section 460 stated:  “1. Every burglary of an inhabited dwelling house, trailer coach as defined by the Vehicle Code, or building committed in the nighttime, and 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 burglary of the first degree.  [¶]  2. All other kinds of burglary are of the second degree.”

11.   There was no allegation of arming or an assault that might also make the burglary first degree.

12.   See footnote 1, ante.

SONENSHINE, Associate Justice.

CROSBY and WALLIN, JJ., concur.