Skip to main content


Reset A A Font size: Print

Court of Appeal, Second District, Division 6, California.

The PEOPLE, Plaintiff and Appellant, v. Ernesto Mendoza MUNOZ, Defendant and Respondent.

Crim. B–010411.

Decided: October 15, 1985

Michael D. Bradbury, Dist. Atty. by Marcia E. Levine, Deputy Dist. Atty., County of Ventura, Ventura, for plaintiff and appellant. Lawrence D. Weber, Van Nuys, for defendant and respondent.

The People appeal the pre-jeopardy dismissal of the allegation that respondent (hereafter defendant) had been “convicted of the serious felony of residential burglary, on or about the 22nd day of December, 1981 ․ within the meaning of Penal Code section 667(a) and Penal Code section 1192.7(c).” 1  The dismissal 2 followed the court's in limine ruling that certain documentary evidence was irrelevant and therefore inadmissible to prove the earlier burglary convictions involved a residence.   This ruling frames the issue on appeal.   We hold the trial court erred in ruling the evidence was not relevant.

The hearing was held before the commencement of jury selection.   Upon whose motion the hearing was held is not disclosed by the record.   After an off-the-record discussion in chambers, the parties stipulated the court's in limine ruling would be binding at trial.   An abbreviated hearing was held in which certain documents were offered and received into evidence to determine their admissibility at the trial on the pertinent prior allegation.   The certified documents the court ruled inadmissible were the charging informations in both prior cases upon which appellant had entered a plea of nolo contendere on the same day, December 22, 1981, and portions of the consolidated probation report included with other documents certified pursuant to section 969b.

The pertinent portion of the first 1981 information alleged the 1981 entry of a “house and building occupied by Glenda Patimo with the intent to commit larceny․”  The second 1981 information charged an entry into “the residential dwelling occupied by Paul Clark, with the intent to commit larceny․”  That portion of the probation report prepared after the two convictions by plea entitled “Circumstances of the Offense” showed each of the structures entered were inhabited dwellings from which the residents were temporarily absent.

The basis for the court's determination the proffered evidence was irrelevant is unclear.   The language in the informations relating to the residential nature of the structures was referred to by the court as “․ language which is volunteered by the prosecution, but not an element of the offense.”   The portions of the probation report discussing the target structures and circumstances of the offense were referred to by the court as “enhancements.”   The court further stated:  “They're not elements of the offense.   They are irrelevant.”

These statements imply the court found either:  (1) only statutorily defined crimes are relevant for a section 667 enhancement, or (2) only evidence of the least adjudicated elements of a prior conviction are relevant.   In either case the court erred.

Subsequent to the hearing in this case the Supreme Court construed section 667, subdivision (a), which incorporates by reference section 1192.7, subdivision (c), paragraph 18, to create an enhancement under which persons convicted of either first or second degree burglary could receive an additional sentence.  (People v. Jackson (1985) 37 Cal.3d 826, 210 Cal.Rptr. 623, 694 P.2d 736 hereafter referred to as Jackson.)   The court held the enhancement is imposed on criminal conduct which does not correspond precisely to the elements of any offense.3

The necessary determination to be made at trial of a denied allegation of a prior serious felony conviction of burglary “of a residence” is consequently not limited to a determination of the elements of the offense of which the defendant has been convicted;  the determination includes whether the criminal offense on which the conviction is based involved a residence.   The Jackson court also determined there is no constitutional bar to an enhancement based on criminal conduct which was not an element of the offense.  (Id., p. 833, 210 Cal.Rptr. 623, 694 P.2d 736.)

Notwithstanding that the residential nature of the prior burglary conviction is a disputed fact of consequence on the trial of the denied prior allegation under Jackson, defendant argues the People are foreclosed from proving it.   To support this proposition he relies on Jackson and People v. Crowson (1983) 33 Cal.3d 623, 190 Cal.Rptr. 165, 660 P.2d 389.   This reliance is misplaced.

The language in Jackson on which respondent relies to support the instant ruling that the evidence proffered by the prosecution was irrelevant is the following:  “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.  [Fn. omitted.]  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.”  (People v. Jackson, supra, 37 Cal.3d at p. 836, 210 Cal.Rptr. 623, 694 P.2d 736.)

In Jackson the defendant admitted allegations that both his prior and present offenses were burglaries of a residence.   Consequently, any determination whether the prosecution could have proved either or both of the allegations, and by what evidence, was unnecessary to the opinion.   The Jackson court cited dicta in People v. Crowson, supra, 33 Cal.3d 623, 190 Cal.Rptr. 165, 660 P.2d 389, which repeated dicta in In re Finley (hereafter Finley ),4 which relied on dicta in In re McVickers (hereafter McVickers ).5

Crowson, Finley, McVickers and its often cited companion, In re Seeley (1946) 29 Cal.2d 294, 176 P.2d 24 (hereafter Seeley ), all involved challenges to increased sentences based on prior foreign felony convictions.6

An analysis of these earlier cases indicates that documents contained in the record of the court where the prior conviction was suffered which were like those offered here were admissible as evidence and used to determine the propriety of an enhanced sentence.   The instances where such documents were not admitted involved only situations where the prior conviction was not for a qualifying offense.   In the latter instances the documentary evidence was not admitted or used because it lacked relevance to any issue of consequence in determining the applicability of the enhancement.

The challenges in the Crowson, Finley, McVickers, and Seeley cases all were based on recidivist enhancements such as those imposed by section 667.5, subdivision (f) on prior out-of-state (foreign) convictions rather than California convictions.   Unlike the enhancement here, those statutes have been construed to limit their applicability to only those convictions which meet the elements of the offense test, i.e., to convictions for an offense the elements of which, as defined by the foreign criminal statute, would also have constituted a felony offense in California.

The relevance of documentary evidence other than the record of the judgment of the foreign conviction was dependent upon whether the conviction qualified for an enhancement under the limitations imposed by the statute.   Where the proof of the contents of the foreign statute showed any conviction of a violation thereof was for an offense the elements of which constituted only a misdemeanor (or no offense at all) in California, it was not a qualifying conviction (hereafter referred to as nonqualifying convictions).7  In such a case, any other evidence regarding the offense or conviction is irrelevant.

Where proof of the contents of the foreign statute showed a conviction of a violation thereof was for an offense the elements of which may have but did not necessarily constitute a California felony, further proof was necessary to support the enhancement.  (Such convictions are hereafter referred to as qualifying convictions.)

In the case of qualifying foreign convictions, the burden was on the prosecution to offer additional evidence to prove the actually adjudicated elements of the offense which resulted in the prior conviction would have constituted a felony offense in California.   Where no further proof was submitted, the enhanced sentence was found improper.   In the absence of such proof there was a judicially declared presumption that the conviction was based on the minimum offense punishable under the statute.

 This “least adjudicated element” presumption (see Finley, supra, 68 Cal.2d at p. 391, 66 Cal.Rptr. 733, 438 P.2d 381;  McVickers, supra, 29 Cal.2d at pp. 276–279, 176 P.2d 40) was rebuttable.   Where the prosecution proffered documentary evidence contained in the record of the prior conviction, it was used by the court to rebut the presumption and to support the propriety of the enhanced sentence.8  Such documentary evidence included charging documents.9  Since the prosecution in the instant case has the same burden of pleading and proving the enhancement as it did in those cases, it is entitled to use the same kinds of evidence here.

The second issue raised by the dicta in Jackson and Crowson is whether the allegations in a charging document of the residential nature of the structure are surplusage and, if so, the effect of such characterization on the admissibility of the information.   In People v. Jackson, supra, 37 Cal.3d 826 at page 834, 210 Cal.Rptr. 623, 694 P.2d 736, the Supreme Court states:  “Crowson 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 court went on to state these principles were inapplicable to the proof of the current burglary charge.

Taking the second proposition first, it relates only to foreign felony conviction enhancements such as those imposed by section 667.5, subdivision (f) and 668.   As noted above, enhancements for such convictions are dependent on whether the accused's actually adjudicated conduct resulted in a conviction of a foreign offense which had the same elements as a California felony offense.10

Even assuming the second proposition is not limited to prior convictions which are required to meet the elements of the offense test, the proof here offered does not go “behind the record” but is a part of it.   The charging information or indictment gives the defendant notice of the offense of which he is accused and is part of the appellate record in all criminal cases.  (Cal.Rules of Court, rule 33, subd. (a)(1)(b).)   The report of the probation officer is also part of the normal record on a defense appeal (id.) and a part of the superior court record (§§ 1203, 1203b and 1203.10).

The first proposition that proof of a conviction establishes only the minimum elements of the crime charged as opposed to surplus allegations in the information, while true, is not particularly helpful.   Proof of the abstract of judgment of conviction of a violation of section 459 establishes the fact the person committed a specified degree of burglary.   Such document alone does not establish, and may not be probative of, whether the burglary involved a residence as required by section 667 and 1192.7, subdivision (c)(18).11  This proposition does not mean, however, that proof of allegations contained in the charging pleading are irrelevant or otherwise inadmissible.   If material allegations are shown to have been admitted or found true, they may be determined to establish such facts in a subsequent proceeding where those facts are in dispute.

Whether allegations in a charging document may be determined to be superfluous or material depends on whether they were actually adjudicated.   An allegation in a pleading which charges a violation of section 459 by entry of a residence, while not necessary, is not superfluous to the charge.

 While often amended, section 459 has at all times specified those places or structures which can be the target of a burglary.   Entry of one of those specified structures would appear to be an element of the offense which must be pleaded and proved.  (See People v. Gibbons (1928) 206 Cal. 112, 273 P. 32.)   As inhabited dwellings (synonymous with residences) are among those structures, pleading entry thereof is not surplusage under the statute.

Assuming arguendo pleading entry “of a residence” was surplusage under section 459 prior to the enactment of section 462, it was not surplusage in an allegation of an offense occurring after January 1, 1981, the effective date of the enactment which restricts grants of probation to persons whose burglary was of a residence.  (Also see § 1203.06, subd. (a)(1)(vi) and § 1170.95, formerly 1170.8.)   Just as such pleading after the enactment of Proposition 8 on June 9, 1982, “․ was not superfluous, but essential to notify defendant [what] the prosecution intended to prove ․”  (People v. Jackson, supra, 37 Cal.3d at p. 835, 210 Cal.Rptr. 623, 694 P.2d 736), so was it here.   Due process considerations may require and certainly would permit the prosecution to allege facts which, if found true or admitted, would preclude probation upon conviction.  (See e.g., §§ 1203.045, subd. (b), 1203.055, subd. (d)(1) and 1203.06, subd. (b)(1).)   Conversely, defendant had a significant interest in contesting such allegations to avoid a prison sentence.

 In this case where the prior conviction was based upon a plea, the allegations in the charging document are material in determining of what criminal offense the accused was actually charged and convicted.  (See §§ 687, 689, 1017, 1023.)   A plea admits all of the elements of the crime charged.  (People v. Jones (1959) 52 Cal.2d 636, 641, 343 P.2d 577.)   The crime charged was a residential burglary.   Therefore, proof of the allegations in the information together with proof of the plea is relevant, i.e., has some tendency in reason to prove the prior conviction involved burglary of a residence when offered in a subsequent case where the truth of that fact is of consequence.12  (Evid.Code, § 210;  cf. People v. Longinetti (1985) 164 Cal.App.3d 704, 210 Cal.Rptr. 729.)   It was error to sustain a relevancy objection.  (See People v. Dean (1984), 161 Cal.App.3d 493, 503, 207 Cal.Rptr. 688.)

Defendant requests this court vacate all his pleas and admissions if the dismissal order is reversed.   The request is denied.

 He pled nolo contendere to two 1983 first degree (residential) burglaries and admitted another prior allegation after the court dismissed the prior considered here.   The record indicates he was advised of and stated he understood one of the consequences of those pleas would be that he could serve an additional five years if the court's ruling were overturned on appeal and he was then found to have suffered a prior serious felony, i.e., residential burglary, conviction.   His plea was not conditioned upon a specified sentence pursuant to a plea bargain (see § 1192.7, subd. (b)).  Consequently he is not entitled to the automatic vacation of his pleas under Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 and In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449.)

The order dismissing the prior allegation is reversed and ordered vacated.   The cause is remanded for further proceedings consistent with the view expressed herein.

The dicta in Jackson was not written merely to take up space.   Its purpose was to give guidance to trial courts.  “The disdain for dicta is a myth:  The most respected judges indulge in it, for one purpose or another;  and the line between necessary background statements of principle and unnecessary dicta is not easy to draw.  [Citations.]  ․ When a decision reverses a judgment, it is sometimes desirable to add to the opinion statements of the law that should govern retrial of the issues.   Such statements not only simplify the task of the trial judge but also minimize the chances of another appeal in the case.  [Citations.]”  B.E. Witkin, Manual on Appellate Court Opinions, (1977) §§ 86–87 pp. 156–157.)

“Dicta are not to be ignored.   Dicta may be highly persuasive, particularly where made by the Supreme Court after that court has considered the issue and deliberately made pronouncements thereon intended for the guidance for the lower court upon further proceedings.  [Citations.]”  (City of Fresno v. Superior Court (1978) 82 Cal.App.3d 191, 194, 146 Cal.Rptr. 880.)

The trial judge understandably felt constrained to follow it.   So did the dissenting judge in People v. Longinetti (1985) 164 Cal.App.3d 704, 708–709, 210 Cal.Rptr. 729.

The Jackson court permits the prosecution to enhance a sentence based on prior criminal conduct, but its dicta does not allow the prosecution to prove that conduct by the use of the record in the prior proceeding.   In Jackson, the court giveth with one hand, but its dicta based on Crowson, taketh away with the other.   This is like putting a boxer in the ring with both hands tied behind his back.

Even though “[d]icta are not to be ignored․,” I am obliged by the persuasive reasoning of the majority to reject it here.   I am sure I will soon know whether my decision to concur is bold or foolish.


1.   All further section references are to this code unless otherwise specified.

2.   We assume the dismissal which the reporter's transcript indicates was on the court's own motion was pursuant to Penal Code section 1385.   The dismissal in the minute order is defective under this section as it fails to state a reason therefor.

3.   Effective January 1, 1983, section 460 was amended to provide that all burglaries of a residence were first degree burglaries and all other burglaries are second degree burglaries.   The elements of the offense of burglary set forth in section 459 remain unchanged.  (See People v. Jackson, supra, 37 Cal.3d 826, 830, fn. 2, 210 Cal.Rptr. 623, 694 P.2d 736.)

4.   (1968) 68 Cal.2d 389, 392–393, 66 Cal.Rptr. 733, 438 P.2d 381.

5.   (1946) 29 Cal.2d 264, 276, 176 P.2d 40.

6.   Finley, McVickers, and Seeley were collateral attacks by way of petition for habeas corpus and Crowson was a direct appellate challenge.   In all four cases the defendant had admitted allegations in charging documents which alleged only the fact of a prior conviction of a specified foreign felony statute.   The defendants in each case were not foreclosed by their admission of the fact of these convictions from challenging on review whether the conviction met the criteria for enhancement.   The defendant in Jackson, however, admitted an allegation he had suffered a prior felony conviction and that it met the criteria for enhancement under section 667.   As a result of this dual admission, he was foreclosed from challenging the correctness of the enhancement on appeal.

7.   (See Seeley, supra, 29 Cal.2d at pages 301–302, 176 P.2d 24 and Crowson, supra, 33 Cal.3d at p. 633, 190 Cal.Rptr. 165, 660 P.2d 389.)

8.   See e.g., In re Finley, supra, 68 Cal.2d 389, at page 391, 66 Cal.Rptr. 733, 438 P.2d 381, where Washington burglary statutes were violated by entry with intent to commit any misdemeanor or a felony where the only misdemeanor offense qualifying in California was petty theft.   There court relied on police reports to determine what the adjudicated elements were.

9.   See e.g., In re Taylor (1944) 64 Cal.App.2d 47, 50, 148 P.2d 143, cited with approval in McVickers, 29 Cal.2d at page 277, 176 P.2d 40, also see pages 280–281, 176 P.2d 40.

10.   The proposition also seemingly limits the prosecution to proof by a certain kind of evidence, i.e., that contained in the record of the prior case even where proof of conduct is relevant to show what offense was actually adjudicated.   This latter limitation was imposed on proof in habeas corpus proceedings based on then existing limitations on evidentiary hearings in such collateral proceedings.  (See Seeley and McVickers.)

11.   This, of course, is not true of proof of a judgment of conviction of first degree burglary for offenses occurring on or after January 1, 1983.   Proof of such judgment conclusively establishes the burglary was of a residence.   Nor is it true of those judgments of conviction which expressly incorporate the accusations in the charging document.  (People v. Longinetti (1985) 164 Cal.App.3d 704, 210 Cal.Rptr. 729.)

12.   We need not here decide to what extent, if any, proof of those admissions constitute a conclusive determination of the fact admitted under the doctrine of collateral estoppel.  (See People v. Crowson, supra, 33 Cal.3d 623, 634, 190 Cal.Rptr. 165, 660 P.2d 389;  see generally, Witkin, Cal.Procedure (2d ed. 1970) Judgments, §§ 184, 197–201 and 209–217.)

ABBE, Associate Justice.

STONE, P.J., concurs.

Copied to clipboard