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PEOPLE v. McDONALD

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Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Respondent, v. Robert McDONALD, Defendant and Appellant.

Crim. 13576.

Decided: May 16, 1986

Jeffrey J. Stuetz, San Diego, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Anthony L. Dicce and Maureen A. Daly, Deputy Attys. Gen., for plaintiff and respondent.

In People v. Jackson (1985) 37 Cal.3d 826, 210 Cal.Rptr. 623, 694 P.2d 736, the Supreme Court considered the permissible manner of proving a prior “serious felony” under Penal Code section 667.   The court held that its earlier decision in People v. Crowson (1983) 33 Cal.3d 623, 190 Cal.Rptr. 165, 660 P.2d 389, established two propositions relevant to the proof of prior serious felonies:  “(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.”  (Jackson, supra, 37 Cal.3d at p. 835, 210 Cal.Rptr. 623, 694 P.2d 736.)   In the published portion of this case we consider the effect of those propositions upon the proof of prior convictions for first degree burglary and for aggravated assault.   As we shall explain, the proof of these prior convictions was consistent with those restrictions and the enhancements were therefore properly imposed.   In the unpublished part of the opinion we consider the remaining issues and, finding no reversible error, affirm the judgment.

Defendant was found guilty by a jury of one count of aggravated assault (former Pen.Code, § 245, subd. (a)), with a special finding that he intentionally inflicted great bodily injury upon the victim (Pen.Code, § 12022.7).1  In a separate trial to the court defendant was found to have suffered three prior serious felony convictions, two for residential burglaries, and one for a felony in which the defendant personally used a dangerous or deadly weapon.  (§§ 667, 1192.7, subd. (c)(18) and (23).)   Defendant was sentenced to a total unstayed prison term of 21 years.   He launches a series of appellate assaults against his conviction and the imposition of the serious felony enhancements, all which we repel.

FACTS

This was a straightforward case of an alleged assault with a knife to which defendant admitted the act but claimed self-defense.   The circumstances of the incident were presented through the testimony of the only two eyewitnesses, defendant and the victim, Lance Guiles.   Guiles testified that on December 5, 1982, he and defendant were both residents of the Shasta Hotel in Sacramento.   Guiles was a radio and television repairman and a few days before December 5th defendant took a radio to him to see whether it could be fixed.   Guiles told defendant he could fix the radio for $5, and defendant told him that after fixing it he could use it for a few days since Guiles' own radio and television had been recently stolen.   Guiles fixed the radio and on December 5th defendant came to his room and asked for it.   Guiles gave defendant the radio and told him it was $5 to fix it.   Defendant simply responded, “yeah, I know all about that,” and walked away.   Guiles went to his door and asked whether defendant was going to pay for the repair, and when defendant did not answer Guiles became angry, started calling defendant vulgar names, and stomped his foot.

After this display of Guiles' anger, defendant, who had walked down the hall, turned and said, “I'll teach you, you son of a bitch.”   Defendant then began walking towards Guiles at a fast pace and Guiles grabbed his door frame and lifted his foot to ward defendant off.   Defendant pushed Guiles' leg away and stabbed him in the abdomen.   Guiles fell to the floor and said, “Okay, that's it.   I have had it.”   Defendant left and Guiles knocked on the door of a neighbor, Charles Brown, and asked him to call an ambulance.   When Guiles arrived at the hospital he was observed to have suffered an abdominal wound of about three or four inches long and about four feet of his intestine was protruding from the wound.   Guiles underwent an operation and remained in the hospital for five days.

Not unexpectedly, defendant's version was substantially different.   According to defendant about two days before the incident in question Guiles came to his room and accused him of taking his radio and television.   Guiles had a pocket knife, and he said he was going to kill the person who took his property.   Defendant offered Guiles a radio which was in need of repair and told him that if he fixed it he could use it until defendant could find a buyer for it.   On December 5, 1982, defendant spoke with another tenant of the Shasta Hotel and agreed to sell the radio to him for $5.   When defendant went to Guiles' room to get the radio there was an argument because Guiles insisted that defendant owed money for the repair of the radio.   Defendant told him that he had not agreed to pay for the repair of the radio, but had only agreed to let Guiles use it until it could be sold.   Defendant retrieved the radio and took it to his room, and eventually took it to the purchaser's room.   Defendant then returned to his room, left to visit another tenant of the building, and started to return to his room again.

Defendant testified that although he does not commonly carry a knife, on one trip to his room he put his knife in his pocket because he “didn't know if I was going to need it.”   He had been thinking about the trouble that Guiles had been giving him, some stabbings in the hotel prior to that, and some fortunes from fortune cookies.   He had eaten a fortune cookie and found that the fortune stated “I might have to put a boot in somebody or in their ass, to that effect.”   He ate another cookie and the fortune predicted that he was definitely headed for trouble.2  When he passed Guiles' door on the way to his room after visiting in the building Guiles began calling him vulgar names.   This made him angry, but he tried to “maintain” and decided to go visit some more.   As he tried to walk out past Guiles' door, Guiles kicked at him.   Defendant stepped back, but was struck in the leg by Guiles' foot.   Guiles came at defendant swinging his fists and managed to grab defendant's jacket which was partially pulled up over his head.   Defendant went down on one knee and struggled to get his hands out of his pockets.   At that time he “remembered instinct ․ that I had the knife.”   Although defendant had not seen Guiles with a knife on that occasion, he testified that he was afraid of getting hurt and did not know what Guiles was going to do.   Defendant got a little traction and pushed Guiles against the wall, and stabbed him with his knife.   Guiles fell to the ground and said, “That's enough, I've had it,” so defendant went back to his room, washed his knife, and laid down.   He was arrested shortly thereafter.

Defendant was allowed to present evidence that Guiles was the aggressor in a subsequent altercation.   It appeared that sometime after the incident in question the Shasta Hotel was condemned.   Charles Brown, who had lived next to Guiles in the Shasta Hotel, found a new apartment and on occasion was visited by Guiles.   In September 1983, Brown met another former resident of the Shasta Hotel, a woman named Doris, and invited her to his home because she was looking for a place to live.   Brown visited with Doris and a neighbor named Robert for a while, and eventually returned to his apartment leaving Doris and Robert together.   Brown went to sleep but in the late afternoon was awakened by an argument between Guiles and Doris.   Brown went to find out what was happening and his knock on Robert's door was answered by Guiles who went up to Brown's apartment.   Doris told Brown that while they lived in the Shasta Hotel she and Guiles hated each other, and she asked to leave by Brown's back stairs so she could be sure Guiles did not follow her.   Brown took Doris to his apartment where words were exchanged between Guiles and Doris, and Brown told Guiles to leave.   Brown took Doris into the apartment.   About five minutes after Brown and Doris entered the apartment Guiles began kicking on the door.   Eventually Brown opened the door whereupon Guiles stabbed him with a knife.   Brown, who is a very large individual, struck Guiles on the nose and knocked him down and then continued hitting him until the apartment manager told him to stop.

Guiles' version of this incident differed from Brown's.   Guiles testified that he had been visiting Robert and that they had been drinking.   Doris came over and wanted him to open a fresh bottle of wine just for her, so he called her names.   She yelled back at him and left.   He then decided to go get Charles to join them in a drink.   When he got to Brown's apartment he dropped his glasses and could not find them.   He saw Brown and Doris coming up the stairs and he asked whether they saw his glasses but they ignored him.   When he could not locate his glasses he began knocking on Brown's door and although there was no answer he kept knocking because he knew they were there.   Brown yelled at him, and then came out and began beating him on the head.   He put up his hands to block the blows and was cut or slashed on the hand.   As Brown continued to hit him, he pulled out his knife and stabbed him.   Brown dropped to the floor and Guiles threw down his knife and ran to the police.   It was established that after the incident Guiles did go to the police department, and he was observed to have a puncture wound on his hand.

In rebuttal the People were permitted to introduce evidence that defendant was the aggressor in a prior, unprovoked assault with a deadly weapon.   Paul Clayton testified that in 1980 he was experiencing marital difficulties.   He went to the home of defendant's sister and brother-in-law to talk with his wife, who was spending time there.   As Clayton talked with his wife defendant entered the room and invited him outside to talk.   Defendant was insistent and Clayton agreed to go outside.   They went to the barn where defendant picked up an ax and began fondling it.   Clayton, who had a broken hand at the time, became nervous and told defendant he would leave if he did not put the ax down.   Defendant put the ax down but subsequently picked up a metal pipe.   Clayton turned away whereupon defendant struck him on the side of the face with the pipe.   Clayton fell down and defendant continued striking him in the head with the pipe.   As the result of this attack Clayton suffered broken bones around his eye, injury to his eye, a broken jaw, and lacerations on the back of his head which required 38 stitches to close.   According to defendant, Clayton left the barn and then returned and a neighbor flicked a light or something and defendant thought Clayton had something in his hand, although he did not.   Defendant hit him and he fell, but then came up in a rage and a struggle resulted.   Defendant claimed to have only struck Clayton one time with the pipe, and he said Clayton must have hit the post or something in falling.

DISCUSSION

I **

II

 Defendant contends that the trial court erred in finding that he had suffered three prior serious felony convictions and in enhancing his prison sentence for those convictions under section 667.   We disagree.

Section 667 was added to the Penal Code by the passage of Proposition 8, an initiative measure on the June 8, 1982, ballot.   It creates a new enhancement for repeat offenders who recommit “serious felonies.”   Subdivision (a) of that section provides that a person who is convicted of a serious felony shall receive a five-year enhancement of his prison term for each prior conviction for a serious felony on charges brought and tried separately.   Subdivision (d) of section 667 defines serious felonies as those crimes listed in subdivision (c) of section 1192.7.   Serious felonies listed in that subdivision include burglary of a residence, and any felony in which the defendant personally used a dangerous or deadly weapon.  (Subds. (c)(18), (c)(23).)

The current information charged that defendant had previously been convicted of three serious felonies.   Two of the prior convictions were alleged to be convictions for burglary in the first degree (§§ 459, 460) while the third was for assault with a deadly weapon (former § 245, subd. (a)).  Pursuant to defendant's motion the court bifurcated the trial of the prior convictions and held a court trial on those allegations after the jury returned its guilty verdict.   At the court trial certified copies of the record of convictions were introduced into evidence.

The record of the first conviction reveals that defendant was charged by information with having committed the crime of burglary of the first degree on June 30, 1972, when he feloniously “enter[ed] that certain residence occupied by RAYMOND E. MUNOZ located at 9125 Central Avenue, Orangevale, in the County of Sacramento, State of California, in the nighttime, with intent to commit theft therein.”   The record further reflects that defendant “entered his plea of Guilty to the crime of Burglary as charged” and was thereafter sentenced to the state prison for the term prescribed by law for the crime of burglary of the first degree.

The record of the second conviction disclosed that two informations were consolidated for trial.   In one defendant was once again charged with the crime of first degree burglary, this time on October 9, 1975, when he feloniously “enter[ed], in the nighttime, that certain residence of DONALD EUGENE GLASS located at 5016 Arbardee Drive in the County of Sacramento, State of California, with intent to commit theft therein.”   In the other, he was charged with a burglary committed on October 10, 1975, when he feloniously “enter[ed] that certain residence occupied by DOUGLAS SMITH and located at 8732 Latimer Way in the County of Sacramento, State of California, in the nighttime, with intent to commit theft therein.”   The record further attests that, following a jury trial, defendant was found “GUILTY of the crime of Burglary as charged in the Information, in the first degree” as to both offenses and that he was once again sentenced to state prison for the term prescribed by law for those crimes.

The record of the third conviction shows that defendant was charged by amended information with the crime of aggravated assault committed on February 15, 1980, when he feloniously “commit[ted] an assault upon PAUL WILLIAM CLAYTON, a human being, with a deadly weapon, to wit, a pipe, and by means of force likely to produce great bodily injury.”   Defendant pled guilty to the charged crime.   At the time of entering his guilty plea the following dialogue occurred between the court, counsel and defendant:

“THE COURT:  Ms. Hansen [prosecutor], may we have a factual basis for the entry of the plea, please?

“MS. HANSEN:  Yes, your Honor.   On February 15, 1980, in the early evening, the defendant, and the victim, who was a resident of 6341 Grand Avenue, the defendant asked Mr. Clayton to step outside wherein a verbal indicatation [sic ] ensued.   The defendant, Mr. McDonald, picked up a large pipe, approximately three feet long, hit the victim, Mr. Clayton, about the face and the head causing injuries to him.   The incident was not—the actual incident was not witnessed by others;  however, others did see the victim, Mr. Clayton, on the ground, and Mr. McDonald holding the pipe.

“THE COURT:  Mr. McDonald, did you hear what Ms. Hansen said?

“THE DEFENDANT:  Yes.

“THE COURT:  Is that a true statement of what you did?

“THE DEFENDANT:  Yes.”

The trial court found the allegations of prior serious felony convictions to be true, and defendant's prison term was enhanced a total of 15 years for the three prior convictions.

Defendant contends that the three serious felony enhancements should be vacated for a variety of reasons.   He argues that an assault with a deadly weapon is not a serious felony, that the evidence is insufficient to support the findings that the burglaries were serious felonies, that redefining his prior convictions as serious felonies constitutes an ex post facto law, violates section 3 and is prohibited under collateral estoppel principles, and finally that the case should be remanded to give the trial court an opportunity to strike the enhancing allegations.   We begin with the burglaries.

Equating the abstract of judgment (see § 1213.5;  Cal.Rules of Court, rule 982(a)(14)) with the record of conviction, defendant contends that under People v. Crowson, supra, 33 Cal.3d 623, 190 Cal.Rptr. 165, 660 P.2d 389, the trial court could not go behind the abstract.   Since the abstract did not reveal that the prior burglaries involved residences, the proof failed.   And even if the court could go behind the abstract, the use of the phrase occupied residence, defendant opaquely claims, does not necessarily mean the information charged burglary of a residence.

In People v. Jackson, supra, 37 Cal.3d 826, 210 Cal.Rptr. 623, 694 P.2d 736, the Supreme Court addressed section 667 in the context of a prior “burglary of a residence” conviction.   The court held that sections 667 and 1192.7 are not limited to specific criminal offenses and enhancements but also refer to the conduct described in the enhancing statute.   Consequently, those provisions are applicable whenever the prosecution pleads and proves that conduct.  (37 Cal.3d at p. 832, 210 Cal.Rptr. 623, 694 P.2d 736.)   However, in proving that a prior conviction is in fact a serious felony conviction the prosecution is limited to the record of the conviction and a “least adjudicated elements” approach.  (Id., at p. 834, 210 Cal.Rptr. 623, 694 P.2d 736.)   As we noted at the outset, in adopting this two prong test the Court relied upon People v. Crowson, supra, 33 Cal.3d 623, 190 Cal.Rptr. 165, 660 P.2d 389.  “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.”   (Jackson, supra, 37 Cal.3d at p. 835, 210 Cal.Rptr. 623, 694 P.2d 736.)   Despite these limitations, “[t]here is no rule, however, which bars the defendant from admitting that a prior burglary involved entry into a residence, even if the prosecution is unable to prove the allegation․  [I]f, as part of a bargain, [a defendant] finds it advantageous to admit an enhancement which the prosecution may be unable to prove, Crowson does not prevent the court from giving effect to that admission.”  (Id., 33 Cal.3d at p. 836, 190 Cal.Rptr. 165, 660 P.2d 389.)

Thus, when there is a trial on a serious felony allegation, the Crowson propositions tell what to look at (the record of conviction) and what to look for (the adjudicated minimum elements of the crime).   But when the enhancement allegation alleges facts which make the prior crime a serious felony, and defendant admits the allegation, Jackson stands for the alternative proposition that the admission is valid despite the Crowson limitations at trial.8  When a defendant admits a serious felony allegation the People are not put to their proof, the record of conviction is not introduced, and there is nothing to look at.   The admission similarly relieves the court of its duty to determine the minimum elements of the prior crime because defendant had conceded that the earlier crime, as pled in the enhancement allegation, constitutes a serious felony.

In People v. O'Bryan (1985) 37 Cal.3d 841, 210 Cal.Rptr. 450, 694 P.2d 135, a companion case to Jackson, the high court addressed the question of a serious felony in the context of a first degree burglary.   There defendant pled nolo contendere to a charge of second degree burglary involving entry into a residence, and admitted a prior 1980 conviction of first degree burglary.9  On the date of his prior burglary, section 460 defined first degree burglary as a “burglary of an inhabited dwelling house or trailer coach as defined by the Vehicle Code, or the inhabited portion of any other building, committed in the nighttime․”  (Stats. 1978, ch. 579, § 23, p. 1985.)   Defendant argued that his prior conviction could have been for burglary of the inhabited portion of a non-residential building.   The court rejected that contention and held that the “term ‘residence’ in section 1192.7 was intended to encompass not only dwelling houses and trailer coaches, but also ‘the inhabited portion of any other building.’ ”  (Id., at p. 844, 210 Cal.Rptr. 450, 694 P.2d 135.)   The court found support for its interpretation in the definitional language of section 1170.95 which defines residential burglary in the same fashion.10  So construed, the court held that the 1980 first degree burglary was, as a matter of law, a “burglary of a residence” under section 1192.7.  (Id., at p. 845, 210 Cal.Rptr. 450, 694 P.2d 135.)

In 1972 and 1975, when defendant committed the prior burglaries, burglary of the first degree was defined this way:  “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.”  (Stats.1955, ch. 941, § 1, p. 1827.)   Since the crime of first degree burglary was then defined differently, O'Bryan does not control this case and the issue must be resolved on other grounds.

 The first question to be resolved is what are the “least adjudicated elements” of an offense when the crime can be committed in a variety of statutory ways.11  In our view, the answer turns upon the accusatory pleading.   If the material allegations of the information charge only one variety of the crime, and defendant is convicted as charged, it is the least adjudicated elements of that variety of the crime which are controlling.   Nothing in Crowson is inconsistent with this construction.   Indeed, Crowson found support for its interpretation in In re Finley (1968) 68 Cal.2d 389, 66 Cal.Rptr. 733, 438 P.2d 381, and other cases construing parallel statutory provisions relating to prior foreign convictions.  (Crowson, supra, 33 Cal.3d at pp. 663–634, 190 Cal.Rptr. 165, 660 P.2d 389.)   When foreign crimes were used as the basis for an adjudication of habitual criminality, the Supreme Court early held that habeas corpus was a proper remedy to challenge their use even though the accused had admitted the truth of those prior convictions at trial.  (In re McVickers (1946) 29 Cal.2d 264, 176 P.2d 40;  In re Seeley (1946) 29 Cal.2d 294, 176 P.2d 24.)   This is because the hearing on the priors does not relitigate the guilt or innocence of the accused;  the only question in the habeas proceeding is whether the adjudicated elements of the foreign offense would constitute a felony in California.  (McVickers, supra, 29 Cal.2d at pp. 276–277, 176 P.2d 40.)   In determining what the adjudicated elements of a foreign crime were, the courts have always looked to the documentary evidence of the conviction, including the prison record, commitment, judgment and accusatory pleading.  (See In re Wolfson (1947) 30 Cal.2d 20, 24, 180 P.2d 326.)   Thus the courts have consistently looked to the accusatory pleading, and if the pleading charged the elements of what would be a felony in California, then the enhancement was applicable even though the foreign statute could be violated in a manner which would not constitute a crime in California.  (See In re McVickers, supra, 29 Cal.2d at p. 280, 176 P.2d 40;  In re Harincar (1946) 29 Cal.2d 403, 406–407, 176 P.2d 58;  In re Wolfson, supra, 30 Cal.2d at 24–25, 180 P.2d 326;  In re Bramble (1947) 31 Cal.2d 43, 54, 187 P.2d 411;  In re Taylor (1944) 64 Cal.App.2d 47, 50–51, 148 P.2d 143.)   Where the accusatory pleading in the prior proceeding charges an offense only by name or by statute designation, then the court must presume that the defendant was convicted of the least offense punishable under the statute.  (See In re McVickers, supra, 29 Cal.2d at pp. 278–279, 176 P.2d 40.)   This seems reasonable since a material variance between the pleadings and the proof must result in acquittal even though the evidence produced establishes guilt of an uncharged crime which is not a lesser included offense.  (In re Hess (1955) 45 Cal.2d 171, 174, 288 P.2d 5;  People v. Feldman (1959) 171 Cal.App.2d 15, 23–24, 339 P.2d 888.)   This restriction to the least adjudicated elements of a foreign crime is premised on the sensible notion that one ought not be punished for conduct that has not been adjudicated in a court of law.  (See People v. Crowson, supra, 33 Cal.3d at p. 634, 190 Cal.Rptr. 165, 660 P.2d 389.)   To be adjudicated means that a defendant had the opportunity and motive to dispute the factual issue and has either admitted it or had it resolved adversely to him by the finder of fact.   It was against this background that the Attorney General, in In re Finley, asked the court to overrule the McVickers-Seeley line of cases.   The court declined the request, noting that the fact of the conviction for a foreign offense “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.”  (68 Cal.2d at p. 393, 66 Cal.Rptr. 733, 438 P.2d 381.)   Thus, the adjudicated elements of the foreign conviction are frozen at the time of the conviction, and neither the People nor the defendant may go behind the adjudicated elements to show the commission of a greater, lesser, or different offense.  (Ibid.)  In so holding, however, the Finley court neither held nor implied that the prior practice of looking to the allegations of the accusatory pleading to determine the adjudicated elements of the prior crime was not proper, and in fact cited without question the numerous prior decisions which had done so.  (Ibid.)

As we have recounted, the accusatory pleadings in the first two prior convictions charged the crime of first degree burglary.   The elements of the crime of first degree burglary at the time defendant committed the offenses were (1) the entry;  (2) into a building;  (3) with intent to commit theft or a felony;  and (4) the building was “an inhabited dwelling house, trailer coach as defined by the Vehicle Code, or other building committed in the nighttime;”  or (4) the burglary was “committed by a person armed with a deadly weapon;”  or (4) the burglary was committed by a person “who while in the commission of the such burglary arms himself with a deadly weapon;”  or (4) the burglary was committed by a person “who while in the commission of such burglary assaults any person.”  (Former § 460, as amended by Stats.1955, ch. 941, § 1, p. 1827.)   Each variety of first degree burglary carried the same punishment and in that sense there was no lesser offense punishable under the statute.   Thus, as the court noted in People v. Taylor (1966) 247 Cal.App.2d 11, 16, 55 Cal.Rptr. 521, there were then four classifications of first degree burglary:  [¶] “burglary of a habitation in the nighttime, [¶] burglary armed with a deadly weapon, [¶] burglary by one who arms himself during the crime, [a] burglary accompanied by assault.”

 The allegations in the prior informations that defendant burglarized occupied residences in the nighttime were therefore not superfluous.   Instead, they constituted the minimum elements of one of the several varieties of the crime of first degree burglary.12  Consequently, nothing precluded the People from proving that defendant had previously been found guilty of having committed the minimum elements of that charged crime.   Nor did the prosecution go behind the record of the conviction to relitigate the circumstances of the offense to prove some fact that was not an element of the offense of first degree burglary.   Although the Jackson court did not explain what comprises the “record of conviction”, we conclude that it necessarily includes the accusatory pleading, the record of the plea of guilty or the verdict or finding of guilt by the trier of fact, and the judgment.  (Cf. § 969b.)   In our view the record of conviction must, at a minimum, show what the defendant was charged with, the manner of his conviction, what he was convicted of, and what sentence was imposed.   In People v. Longinetti (1985) 164 Cal.App.3d 704, at pages 707 and 708, 210 Cal.Rptr. 729, the court held that the residential nature of a prior burglary conviction may be proved by reference to the information in the prior case.   We agree with the Longinetti court that the information comprises part of the record of conviction and its introduction into evidence does not constitute a prohibited “going behind” the record.   Since the record of conviction established that defendant had been previously twice convicted of first degree burglary of a residence, the evidence was indisputably sufficient to support the challenged findings.

 A slightly different problem is posed by the prior assault conviction.   As we have noted, defendant's prior assault was committed in February 1980.   At that time section 245, subdivision (a), prohibited “an assault upon the person of another with a deadly weapon or instrument or by any means of force likely to produce great bodily injury․”  (Stats.1976, chs. 420, 1126, 1138, and 1139, § 152.5.)   A violation of section 245, subdivision (a) is not specifically identified as a serious felony in section 1192.7.   Under subdivision (c)(23), however, a serious felony includes “[a]ny felony in which the defendant personally used a dangerous or deadly weapon.”   But a person may be convicted of a violation of section 245, subdivision (a) without personally using a dangerous or deadly weapon.13  Such a result could occur where the force employed was likely to produce great bodily injury but no deadly weapon was used, or where the defendant aided and abetted another in committing an aggravated assault with a deadly weapon.  (People v. Cooks (1983) 141 Cal.App.3d 224, 190 Cal.Rptr. 211.)   Accordingly, a conviction for aggravated assault under section 245, subdivision (a) does not necessarily establish that the defendant personally used a dangerous or deadly weapon.   Consequently, proof that defendant has been convicted of that crime does not itself establish his liability for a serious felony enhancement.   His liability for the enhancement turns on whether his personal use was adjudicated at the time of his conviction and whether that adjudication is reflected in the record of conviction.   If it was adjudicated and the record reflects it, the enhancement may be imposed.

 In Jackson the accusatory pleading “alleged three prior felony convictions of second degree burglary, describing each as a ‘residential burglary.’ ”  (37 Cal.3d at p. 830, 210 Cal.Rptr. 623, 694 P.2d 736.)   Defendant entered into a plea bargain under which he “admitted the truth of the third alleged prior residential burglary.”  (Ibid., fn. omitted.)   It was against this backdrop that the court, citing Crowson, stated that “[t]he record of a conviction for second degree burglary would not prove entry into a residence, even if the pleading included superfluous allegations to that effect.”  (Id., 37 Cal.3d at p. 836, 210 Cal.Rptr. 623, 694 P.2d 736.)   In its wake, this statement left a turbulent sea of confusion.14  The confusion arises because of the uncertainty about whether the residential character of the structure in the prior conviction in Jackson was ever adjudicated.   Since there is nothing in the report of that case to indicate that it had been, we assume there was no such showing of adjudication on the record of conviction.   In our view, that is the critical question and is the factor which distinguishes this case from Jackson.

Since the entry with the requisite intent into any of the structures listed in Penal Code section 459 constitutes the crime of burglary, the nature of the structure is not always litigated in a burglary prosecution.   If a defendant feloniously enters a non-residential building, his act still constitutes burglary.   Since he is guilty in any event, such a defendant has no reason to litigate the character of the burgled building.   Thus, under the Jackson rationale, the residential character of the building is not adjudicated by a plea of guilty because that character is not indispensible to a burglary conviction and in that sense is “superfluous.” 15  The same Jackson analysis would apply to the crime of aggravated assault.   Whether a defendant personally assaults the victim or only aids and abets the assault is immaterial for purposes of criminal liability.   A defendant cannot defeat the charge by showing that he only aided and abetted the crime.   Thus he has no reason to litigate that personal use question and his plea of guilty does not constitute an adjudication of that question.

 But here defendant did more than just pled guilty as charged.   He expressly admitted that he personally bludgeoned the victim with a pipe.   California courts have long recognized that an admission of fact made by a defendant in open court constitutes an adjudication of that fact.  (See e.g., 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 737;  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.)   Indeed, since Jackson itself expressly sanctioned defendant's admission that the present burglary involved a residence, the court impliedly found that the admission was an adequate adjudication of that fact.   Because the personal use of the dangerous or deadly weapon was adjudicated in this case and because that adjudication appears in the transcript of the guilty plea, a part of the record of conviction, neither of the Crowson restrictions was violated.   The serious felony enhancement for the personal use of a dangerous or deadly weapon was therefore properly imposed.

 All of defendant's remaining challenges to the enhancements can be quickly dispatched.   The ex post facto argument was rejected in Jackson:  “No constitutional bar prevents the application of section 667 to the later offense solely because the prior conviction which serves as a basis for enhancement was committed before the initiative passed.   In the context of habitual criminal statutes, ‘increased penalties for subsequent offenses are attributable to the defendant's status as a repeat offender and arise as an incident of the subsequent offense rather than constituting a penalty for the prior offense.’ ”  (37 Cal.3d at p. 833, 210 Cal.Rptr. 623, 694 P.2d 736.)   The claim that the serious felony statute violates the proscription of section 3 against retroactivity fails for the same reason.16  The collateral estoppel argument, given our construction, collapses of its own weight.  “Collateral estoppel in a criminal case, as embodied in the Fifth Amendment's protection against double jeopardy, means an issue of ultimate fact once determined by a valid and final judgment cannot be relitigated between the same parties in a future lawsuit.”  (Hoffman v. Superior Court (1981) 122 Cal.App.3d 715, 721–722, 177 Cal.Rptr. 868.)   As we have demonstrated, it is only the essential elements of the crime that can later be proved and those elements, by definition, were necessarily litigated and determined when defendant was convicted.   Those elements were frozen at the time of conviction and remain the same whenever challenged.   In short, the elements of the prior convictions have not been relitigated in this case nor the principle of collateral estoppel impinged.

 Lastly, we turn to the question of striking the serious felony enhancements.   In People v. Fritz (1985) 40 Cal.3d 227, 219 Cal.Rptr. 460, 707 P.2d 833, the high court recently held that the trial court retained discretion to strike a serious felony enhancement in furtherance of justice under section 1385.   Defendant argues that the case should be remanded for resentencing in light of Fritz.   There are several answers to that argument.   First of all, defendant never moved to strike the enhancements.   Next, there is nothing in the record to reflect that the trial court erroneously believed that serious felony enhancements could not be stricken in the interest of justice.   Given this record, defendant has not sustained his burden of establishing error.  (People v. Courtney (1985) 174 Cal.App.3d 1004, 1006–1007, 220 Cal.Rptr. 328.)   Moreover, there is no reasonable probability that the sentencing court would strike these enhancements if the case were remanded.   Defendant was convicted of a violent, life-endangering offense.   He has an extensive record of criminality, including assaulting crimes.   Finally, the sentencing court expressly found that there were no mitigating factors in this case.   No useful purpose would be served by remanding in these circumstances.

The judgment is affirmed.

I concur in the majority opinion except for its conclusion, in part II, that defendant's Penal Code section 667 1 enhancement, based on his prior conviction for assault with a deadly weapon (§ 245, subd. (a)), was lawfully imposed.

In my view, the question is controlled by the prior learning experience case of this court, People v. Bradford (1984) 160 Cal.App.3d 532, 206 Cal.Rptr. 899.   In Bradford, all three justices concluded that, with respect to crimes committed before the effective date of Proposition 8, subdivision (c)(23) of section 1192.7, defining as a “serious felony” “any felony in which the defendant personally used a dangerous or deadly weapon,” meant a statutory enhancement found pursuant to subdivision (b) of section 12022.   (Bradford, supra, at pp. 542, 544–545, 206 Cal.Rptr. 899.)

In Bradford we also concluded all paragraphs of section 1192.7, subdivision (c), specified discrete crimes (or former crimes) and enhancements.  (Id., at p. 541, 206 Cal.Rptr. 899.)   However, in People v. Jackson (1985) 37 Cal.3d 826, 210 Cal.Rptr. 623, 694 P.2d 736, our Supreme Court rejected this conclusion of Bradford's and, to that extent, undoubtedly disapproved the case sub silentio.  (Id., at p. 831, 210 Cal.Rptr. 623, 694 P.2d 736.)

In People v. Arwood (1985) 165 Cal.App.3d 167, 211 Cal.Rptr. 307, the Sixth District concluded Bradford had been overruled in its entirety by Jackson.  (P. 175, fn. 6, 211 Cal.Rptr. 307.)   However, I do not think Jackson overruled Bradford's holding.   With respect, I believe Arwood misreads Jackson.   Its mistake is the assertion that Jackson held all paragraphs of subdivision (c) of section 1192.7 refer to criminal conduct, not to criminal offenses.  (See Arwood, supra, 165 Cal.App.3d at p. 175, 211 Cal.Rptr. 307.)   This assertion simply overlooks Jackson's characterization of the matters comprising subdivision (c), as follows:

“Proposition 8, however, did not confine its list of ‘serious felonies' to specific, discrete offenses.   Its list of serious felonies enumerated in section 1192.7 appears to be based largely upon section 12021.1, subdivision (b).   That provision, enacted in April of 1982 to require a six-month county jail term as a condition of probation when a defendant previously convicted of a violent offense is found guilty of owning or possessing a concealable firearm, included a list of 26 ‘violent offenses.’  Section 1192.7 incorporated that list, deleted three paragraphs,6 and added two new matters:  selling, furnishing, administering or providing heroin, cocaine or PCP to a minor (¶ 24);  and burglary of a residence (¶ 18).

“The resulting list of serious felonies as set out in section 1192.7, and incorporated into section 667, is an amalgam of different elements.   Two describe former felonies, now repealed.7  Another refers generally to ‘any felony punishable by death or imprisonment ․ for life.’  (§ 1192.7, subd. (c)(7).)   Two other paragraphs incorporate enhancements which may attach to any felony.8  Finally, the two new paragraphs added to the list both describe criminal conduct which does not correspond precisely to the elements of any then-existing criminal offense.

“․ We therefore reject the view that these sections consist only of specific statutory offenses and enhancements, for the view ignores paragraphs (18) and (24) of section 1192.7, subdivision (c), and renders those paragraphs useless and of no effect.9  We must assume that these paragraphs were added to the list apparently taken from section 12022.1, subdivision (b), for a purpose—and on reflection, that purpose appears clear.   The list in section 12022.1, subdivision (b), was intended to enumerate ‘violent’ crimes.   Paragraphs (18) and (24) describe nonviolent criminal conduct which is, nevertheless, so dangerous that its repeated occurrence might in the minds of the voters call for enhanced punishment equivalent to that imposed upon violent recidivists.   The inclusion of these items evidences the intent of the voters to deter the conduct described in these paragraphs equally with the violent criminal conduct described in other paragraphs.   We give effect to this intent by construing paragraphs (18) and (24) as referring not to specific criminal offenses, but to the criminal conduct described therein, and applicable whenever the prosecution pleads and proves that conduct.”  (People v. Jackson, supra, 37 Cal.3d at pp. 831–832, 210 Cal.Rptr. 623, 694 P.2d 736, fns. in original, emphasis added.)

6 =“Section 1192.7 does not include the ‘violent offenses' of escape from state prison by use of force or violence (§ 12021.1, subd. (b)(23), assault with a deadly weapon (id., subd. (b)(24), and any offense enumerated in section 12011.6 (id., subd. (b)(26)).”

7 “Paragraph (12) refers to assault by a lif e prisoner on a noninmate, an offense based on section 4500, prior to amendment in 1977.   Paragraph (10) refers to assault with intent to commit rape or robbery;  section 220 prohibits assault with intent to commit rape but assault with intent to commit robbery was deleted as a distinct crime in 1978.”

8 “Paragraph (8) refers to any other felony in which the defendant inflicts great bodily injury on any person other than an accomplice, or uses a firearm;  paragraph (23) to any felony in which the defendant personally used a dangerous or deadly weapon.”

9 “Defendant suggests that these paragraphs are an ‘enabling’ act authorizing the Legislature to create specific crimes in the future.   This construction still leaves the paragraphs in question without substantive effect, since the Legislature needs no enabling act to create such specific crimes or to add them to the list of serious felonies set out in section 1192.7.”

In my view, the court's discussion makes clear that the various paragraphs in subdivision (c) of section 1192.7 refer to discrete crimes and enhancements borrowed from section 12021.1, except that paragraphs (18) and (24) do not refer to specific criminal offenses but rather to criminal conduct described therein.  (Id., at p. 832, 210 Cal.Rptr. 623, 694 P.2d 736.)   However, with respect to the precise issue before us, the Jackson court said, “Two other paragraphs incorporate enhancements which may attach to any felony.8”  (Jackson, supra, 37 Cal.3d at p. 832, 210 Cal.Rptr. 623, 694 P.2d 736, fn. in original, emphasis added.)   Footnote 8 (see ante ) refers expressly to paragraph (23):  “any felony in which the defendant personally used a dangerous or deadly weapon.”

I think the Jackson court meant what it said when it used the term “enhancement” to describe subdivision (c)(23) of section 1192.7.   In my view, the court was referring to the common statutory enhancement set forth in subdivision (b) of section 12022.

Lest there be any doubt about the Supreme Court's own words in Jackson, there are other reasons to construe subdivision (c)(23) to require a section 12022, subdivision (b) enhancement for offenses committed before Proposition 8.   First, for reasons more fully explicated in Bradford (see Bradford, supra, 160 Cal.App.3d at pp. 539–540, 206 Cal.Rptr. 899), this conclusion is consistent with the purposes of section 12021.1 from which subdivision (c)(23) was borrowed verbatim;  a construction of the subdivision as referring to conduct divorced from a statutory enhancement cannot be easily reconciled with the purpose to which the language is put in section 12021.1.

Moreover, subdivision (c)(23) must be interpreted to refer to a statutory enhancement in order to satisfy the rule of statutory construction, applicable to initiatives, that the defendant is entitled to every benefit of the doubt in the interpretation of a statute.  (Carlos v. Superior Court (1983) 35 Cal.3d 131, 145–147, 197 Cal.Rptr. 79, 672 P.2d 862;  In re Tartar (1959) 52 Cal.2d 250, 256–257, 339 P.2d 553.)

Finally, at least with respect to this defendant, who committed his crime before any appellate judicial construction of subdivision (c)(23) was available (see In re Davis (1966) 242 Cal.App.2d 645, 653, 51 Cal.Rptr. 702), subdivision (c)(23) must be interpreted to refer to the statutory enhancement to save it from unconstitutional vagueness.  (See Pryor v. Municipal Court (1979) 25 Cal.3d 238, 253–258, 158 Cal.Rptr. 330, 599 P.2d 636.)   A criminal statute must be reasonably certain, so that citizens may be aware of that which is forbidden.  (People v. Superior Court (Hartway) (1977) 19 Cal.3d 338, 345, 138 Cal.Rptr. 66, 562 P.2d 1315.)   Not counting the Supreme Court, at least six appellate jurists have thought subdivision (c)(23) referred to a statutory enhancement, not simply to conduct.  (See Bradford, supra;  People v. Sutton (1985) 163 Cal.App.3d 438, 209 Cal.Rptr. 536.)   I do not see how we can reasonably expect lay defendants to be more knowledgable than six appellate jurists about what a statute means.  (See Pryor v. Municipal Court, supra, 25 Cal.3d at p. 251, 158 Cal.Rptr. 330, 599 P.2d 636.)

A serious felony conviction described by section 1192.7, subdivision (23), and arising out of a crime committed before the effective date of Proposition 8, is one where an enhancement under section 12022, subdivision (b) was pleaded and proved or admitted.  (People v. Bradford, supra, 160 Cal.App.3d at p. 542, 206 Cal. Rptr. 899.)   Since defendant's 1980 conviction for violation of section 245, subdivision (a) was not accompanied by the requisite statutory enhancement, the conviction is not a serious felony for purposes of section 667.   The enhancement term based on this conviction should be stricken and the remaining components of the judgment affirmed.

Assuming arguendo subdivision (c)(23) of section 1192.7 could be applied in the absence of a finding of a statutory enhancement where defendant had, in fact, personally used a deadly weapon, then I would agree with the majority's conclusion that defendant's express admission, made in open court, that he picked up a pipe and hit the victim about the head and face with it would constitute a sufficient adjudication to justify imposition of the serious felony enhancement.

FOOTNOTES

1.   All further statutory references are to the Penal Code unless otherwise indicated.

2.   Towards the end of the trial defense counsel asked the court for a short recess in order to obtain evidence defendant had asked him to present.   After the recess counsel presented a jacket which defendant's mother had placed into a storage locker with his other belongings.   When he was asked whether that was the jacket he was wearing during the incident he first said it was, then said he was not sure.   While examining the jacket defendant found a fortune from a fortune cookie in the pocket which said:  “You will hear good news from one you thought unfriendly to you.”   Defendant said that the fortune he had at the time in no way said that.

FOOTNOTE.   See footnote *, ante.

8.   In People v. Arwood (1985) 165 Cal.App.3d 167, 175, 211 Cal.Rptr. 307, the court noted that Jackson “also held that defendant's admission of a fact necessary for the imposition of a particular enhancement under section 1192.7 is binding upon defendant even though the admitted fact was not an essential element of the prior conviction for which enhancement is sought, provided that the admitted fact (e.g., residential entry) was properly pled as an element of the particular enhancement involved.  (37 Cal.3d at pp. 833–836, 210 Cal.Rptr. 623, 694 P.2d 736.)   The court reasoned that ‘[i]t cannot reasonably be argued that a defendant who admits the truth of an enhancement allegation can escape the increased sentence on the ground that the elements of the enhancement are not also elements of the underlying crime.’  (Id., at p. 835 [210 Cal.Rptr. 623, 694 P.2d 736].)”

9.   The current charge of second degree burglary of residence in that case was upheld as a serious felony under the rationale of Jackson because defendant admitted that the burglary involved a residence.   (O'Bryan, supra, 37 Cal.3d at p. 844, 210 Cal.Rptr. 450, 694 P.2d 135.)

10.   Section 1170.95, subdivision (c) defines 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.”

11.   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.”  (§ 15.)   In addition to that act, in order to constitute a crime “there must exist a union, or joint operation of act or intent, or criminal negligence.”  (§ 20.)   The elements of a crime, therefore, consist of those acts forbidden or commanded by the defining statute coupled with the required intent or mental state.  “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.)

12.   As Witkin notes, “[i]n charging a crime divided into degrees, e.g., ․ burglary, it is not necessary to allege the particular degree, or the facts establishing the degree (e.g., act in nighttime, or defendant armed).   The general pleading of the offense will support proof of the higher or lower degree.”  (Witkin, Cal.Criminal Procedure (1963) § 200, p. 189, citations omitted.)   Nevertheless, “it would appear good practice today, wholly consonant with procedural due process of law, for a defendant to be informed by separate specification to the charge which of the elements making an offense burglary in the first degree he will be required to defend against.   As a matter of pleading, this can readily be accomplished by adding one or more appropriate specifications to the general charge of burglary,․”  (People v. Taylor, supra, 247 Cal.App.2d at p. 16, 55 Cal.Rptr. 521;  cf. People v. Nunez (1970) 7 Cal.App.3d 655, 663, 86 Cal.Rptr. 707.)

13.   Penal Code section 667, which incorporates section 1192.7, subdivision (c), is an enhancement statute which increases punishment but does not itself establish an independent crime.   It is settled that the meaning of a deadly or dangerous weapon within the meaning of an enhancement statute is not to be equated with a deadly weapon within the meaning of the statute establishing and defining the crime of aggravated assault.  (See People v. Ramirez (1979) 93 Cal.App.3d 714, 731, 156 Cal.Rptr. 94;  People v. Dozie (1964) 224 Cal.App.2d 474, 477, 36 Cal.Rptr. 728;  see also, 1 Witkin, Cal. Crimes (1963) § 266, pp. 251–252.)   This is because the use of a normally innocuous article to commit an assault may lead to an aggravated assault conviction depending upon the manner in which the article is used.  (See People v. Jones (1981) 123 Cal.App.3d 83, 97, 176 Cal.Rptr. 398, and People v. Claborn (1964) 224 Cal.App.2d 38, 42, 36 Cal.Rptr. 132, [cars];  see also People v. Martinez (1977) 75 Cal.App.3d 859, 862, 142 Cal.Rptr. 515 [beer bottle];  People v. Helms (1966) 242 Cal.App.2d 476, 486, 51 Cal.Rptr. 484 [pillow];  People v. White (1963) 212 Cal.App.2d 464, 465, 28 Cal.Rptr. 67 [a large rock];  People v. Russell (1943) 59 Cal.App.2d 660, 665, 139 P.2d 661 [fingernail file].)   This is particularly true in view of the fact that section 245, subdivision (a) is phrased in the alternative:  assault with a deadly weapon or by means of force likely to produce great bodily injury.   Where such force is used a person may be convicted of a violation of Penal Code section 245, subdivision (a) even if the instrumentality employed would not constitute a dangerous or deadly weapon within the meaning of an enhancement statute.  (See People v. Claborn, supra, 224 Cal.App.2d at p. 42, 36 Cal.Rptr. 132.)

14.   The question of what evidence may be considered in determining whether a prior felony conviction involved the burglary of a residence is pending before the Supreme Court in People v. Smith 224 Cal.Rptr. 100, 714 P.2d 1239 (1986) and a series of other cases.

15.   As the Jackson court explained, in a post-Proposition 8 case, an allegation that the defendant personally used a dangerous or deadly weapon in the commission of the charged felony would never be superfluous.   Proof of the personal use of the proscribed weapon would expose defendant to an enhanced punishment if he committed a later serious crime.   Thus, an admission or finding of such personal use could be used in a later proceeding to prove that defendant had previously been convicted of a serious felony.  (Jackson, 37 Cal.3d at 836, fn. 14, 210 Cal.Rptr. 623, 694 P.2d 736.)

16.   Section 3 reads:  “No part of [the Penal Code] is retroactive, unless expressly so declared.”

1.   All further statutory references are to the Penal Code.

SPARKS, Associate Justice.

REGAN, Acting P.J., concurs.

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