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PEOPLE v. CALIO

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Court of Appeal, First District, Division 5, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Vincent CALIO, Defendant and Appellant.

A025944.

Decided: April 17, 1985

John K. Van de Kamp, Atty. Gen., Linda Ludlow, Deputy Atty. Gen., Mary A. Roth, Deputy Atty. Gen., San Francisco, for plaintiff and respondent. James W. Haworth, San Francisco, for defendant and appellant.

In this case we hold that when a defendant admits the residential character of prior second degree burglary convictions for purpose of trial, expressly reserving for appeal the denial of his motion to strike the priors, the admission, not being pursuant to a plea bargain, is insufficient to establish the unadjudicated fact of the residential character of the priors for the purpose of imposing five-year enhancements under Penal Code section 667.

Vincent Calio appeals from a judgment of conviction for attempted burglary (Pen.Code, §§ 459, 664) with two prior serious felony convictions (Pen.Code, § 667).   We modify the judgment by striking two five-year enhancements and in all other respects affirm the judgment.

I.1

II.

A jury convicted Calio of attempted burglary.   At the outset of trial Calio admitted two prior serious felony convictions under Penal Code section 667, alleged in a second amended information as “residential burglary” and “attempted residential burglary.” 2  The court sentenced him to two years' imprisonment for attempted burglary plus two five-year enhancements for the prior serious felony convictions.

III.

Calio correctly contends that the court erred in imposing the two five-year enhancements for the serious felonies of burglary and attempted burglary “of a residence.”  (Pen.Code, § 1192.7, subds. (c)(18), (c)(25).)   Our Supreme Court has recently held that the prosecution cannot go behind the record of a conviction for second degree burglary to prove the residential character of the burglary where that fact was not adjudicated, unless the defendant expressly admits this fact as part of a plea bargain.   Under those circumstances, there is an admission upon which an enhancement can be based, even though the prosecution, in the absence of the admission, could not have proved the unadjudicated fact.  (People v. Jackson (1985) 37 Cal.3d 826, 210 Cal.Rptr. 623, 694 P.2d 736;  People v. Crowson (1983) 33 Cal.3d 623, 190 Cal.Rptr. 165, 660 P.2d 389.)   Here, Calio admitted the allegations that his prior burglary offenses involved residences, but that admission was expressly made only for purposes of trial, with a reservation of the right to challenge the enhancement on appeal, and was not part of any plea bargain.   Thus, the five-year enhancements were improperly imposed:  the residential nature of the priors was not admitted within the meaning of Jackson and the prosecution could not go behind the record to prove it.

IV.–VII.3

The judgment is modified by striking the two five-year enhancements imposed under Penal Code section 667 and in all other respects is affirmed.

FOOTNOTES

1.   See footnote *, ante.

2.   Calio also admitted a prior conviction for credit card forgery.  (Pen.Code, § 484f, subd. (2).)

3.   See footnote *, ante.

KING, Associate Justice.

LOW, P.J., and HANING, J., concur.

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