PEOPLE v. DILL

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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Demetrius L. DILL, Defendant and Appellant.

No. D008006.

Decided: October 12, 1989

Ronald K. Olson, 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, Janelle B. Davis and Karl T. Terp, Deputy Attys. Gen., for plaintiff and respondent.

After a jury convicted Demetrius L. Dill of two counts of burglary (Pen.Code, § 459) 1 and one count of grand theft (§ 487, subd. 1), he admitted allegations in the information regarding two out-of-state convictions:  (1) a prior serious felony conviction within the meaning of sections 667 and 1192.7, subdivision (c)(18);  and (2) a prior felony conviction within the meaning of section 667.5, subdivision (b).   The trial court sentenced Dill to 13 years in prison, including a five-year enhancement on the prior serious felony conviction and a one-year enhancement on the other prior conviction.   Dill appeals the imposition of both enhancements, contending his out-of-state prior convictions do not fall within either section 667 or section 667.5.

FACTS

At approximately 10 a.m. on September 21, 1987, Janet Bennett was awakened by rustling noises in her Leucadia condominium bedroom and discovered Dill rummaging through her beach bag.   Dill told Bennett he wished she was not at home.   He also said he wanted money and Bennett pointed to a piggy bank, which contained about $30 in quarters.   Dill took the quarters and left.   Later that day, Bennett's roommate arrived and discovered some watches and camera equipment were missing.   At approximately 11:20 a.m. on the same day, Steven Zouzounis arrived at his Leucadia apartment, which is located about a quarter of a mile from Bennett's condominium.   The front door was open, and the lock and door frame were damaged.   Upon entering, Zouzounis heard a noise upstairs and contacted his neighbor.   The neighbor saw Dill leaving Zouzounis's upstairs bedroom, carrying a large radio and a bag slung over his shoulder.   The neighbor pointed a gun at Dill.   Dill advanced forward, saying he needed money to feed his kids.   The neighbor discharged the gun into the deck and Dill stopped.

Police recovered all of the reported stolen items except $90 reported missing by Zouzounis.   Police also recovered a screwdriver, which Dill admitted using to break into Bennett's condominium and Zouzounis's apartment.

On October 21, 1987, the People filed an information, which accused Dill of committing two counts of burglary and one count of grand theft and also contained the following allegations:  (1) Dill suffered a prior serious felony conviction in Illinois on November 5, 1984, within the meaning of section 667, to wit:  three counts of residential burglary;  (2) Dill suffered a prior felony conviction in Illinois on November 5, 1984, within the meaning of section 667.5, to wit:  three counts of residential burglary and had served a prison term for the offenses and had not remained free of prison custody and free of the commission of an offense resulting in a felony conviction for five years following his release from prison, and (3) Dill suffered a prior felony conviction in Illinois on November 28, 1979, within the meaning of section 667.5, to wit:  residential burglary and had served a prison term for the offense and had not remained free of prison custody and free of the commission of an offense resulting in a felony conviction for five years following his release from prison.

After the jury returned guilty verdicts on the burglary counts and the grand theft count, Dill waived further trial and admitted the first and third prior felony allegations.2  The trial court, counsel and Dill engaged in the following discussion concerning the prior felony allegations:

“The Court:  ․ And, Mr. James, with regard to the priors, how do you wish to proceed?

“Mr. James:  Your Honor, I would advise the court that I've discussed this matter with my client, and that he is prepared to admit the serious prior felony, which is directly under count three on the information.

“And that he is also prepared to admit the last prior felony, which is dated on or about 11–28–79.

“Actually, I may have—that's a misprint.   It should be 12–28–79.

“But he is willing to admit that as a prior felony under 667.5(B)[.]

“I have advised him that he has a right to a jury trial on these matters as to whether or not these are valid priors.   And that he is prepared to waive his right to a jury trial in that regard.

“The Court:  Is that what you wish to do, Mr. Dill?

“The Defendant:  Yes.

“The Court:  As to the serious felony prior, that is that on or about November 5th, 1984, in the State of Illinois, you were convicted of residential burglary, and that that is a serious felony prior within the meaning of Penal Code section 667(a) and 1192.7(c)(18).

“The Defendant:  Yes.

“The Court:  And with regard to the second prior, that on or about November 28, 1979, you were convicted in Illinois of residential burglary, and have not remained free of prison custody for five years, within the meaning of Penal Code section 667.5(b).

“The Defendant:  Yes.

“The Court:  Are the People satisfied?

“Mr. Fisher:  Your Honor, the only question I have is whether or not there's a necessity for the complete listing of the rights and the waivers on those as to the priors.

“In addition, to the jury waiver, that various confrontations and self-incrimination—

“Mr. James:  I'll go through them.

“What the district attorney is talking about is this:  With regard to the prior conviction, you have a right to a speedy and a public trial.   It would be by the jury that has just rendered a verdict in your case.

“In addition to that, you have a right to have witnesses called and have me ask them questions.   And, of course, the district attorney may ask them questions.   It's called the right to confront and cross-examine witnesses.

“You also have a right to remain silent or, if you should, you could testify.   You could not be forced to testify.   But if you chose to do so, you may.

“You also have a right to have witnesses subpoenaed at no cost of your own.

“You have a right to have witnesses subpoenaed at no cost to yourself.   And they may help you present your case.

“Lastly, you have a right to be represented by an attorney, me, throughout the entire stage, or throughout the entire proceedings regarding the prior convictions.

“Do you have any questions about any of those rights?

“The Defendant:  No.

“The Court:  Do you understand that?

“The Defendant:  Yes.

“The Court:  All right.

“Mr. James:  Are you willing to give up these rights as we have previously indicated?

“The Defendant:  Yes.

“Mr. James:  Is that satisfactory?

“The Court:  Are the People satisfied?

“Mr. Fisher:  Yes.

“Mr. James:  For the record, I would advise the court that I've discussed this with Mr. Dill, and that he understands that the first serious prior felony, or his admission to the first serious felony, means his sentence can be enhanced to five years.

“The second prior felony, his sentence can be enhanced by one year, and he has been advised of it and he is aware of it.

“The Court:  Do you understand that, Mr. Dill?

“The Defendant:  Does that mean that I have to do the time concurrent, or do I have to do one and then the other?

“Mr. James:  These are consecutive enhancements, your Honor.

“That means they would be added on.   They're not added on one after the other.

“Is that clear?

“The Defendant:  Yeah.

“Mr. James:  Do you have any questions?

“The Defendant:  No.”

DISCUSSION

I

 We first explain why a pleading error in the information is not fatal to the admission.   With regard to the prior serious felony conviction, the information stated Dill was convicted in 1984 of three counts of residential burglary in violation of Chapter 38 paragraph 19–1 Illinois Revised Statutes.  Chapter 38 Paragraph 19–1 Illinois Revised Statutes is also pled with reference to the prior felony allegations.

Chapter 38 paragraph 19–1 of the Illinois Revised Statutes provides:

“§ 19–1.  Burglary.  (a) A person commits burglary when without authority he knowingly enters or without authority remains within a building, housetrailer, watercraft, aircraft, motor vehicle as defined in The Illinois Vehicle Code, railroad car, or any part thereof, with intent to commit therein a felony or theft.   This offense shall not include the offenses set out in Section 4–102 of The Illinois Vehicle Code, nor the offense of residential burglary as defined in Section 19–3 hereof.

(b) Sentence.   Burglary is a Class 2 felony.”  (Fns. deleted, italics added.)

The underscored portion of subdivision (a) was added by the Illinois Legislature, effective January 1, 1982, when the newly enacted Paragraph 19–3 also became effective.   Paragraph 19–3 provides:

“§ 19.3.  Residential burglary.  (a) A person commits residential burglary who knowingly and without authority enters the dwelling place of another with the intent to commit therein a felony or theft.

“(b) Sentence.   Residential burglary is a Class 1 felony.”

By November 5, 1984, when Dill was convicted of three counts of residential burglary, the crime was no longer covered under the general burglary statute (¶ 19–1)—as it had been prior to January 1, 1982—but rather was covered under the separate residential burglary statute (¶ 19–3).   Thus, the wrong Illinois statute was pled in the serious prior felony allegation.   The pleading error, however, does not require vacation of Dill's admission that he was previously convicted of residential burglary in Illinois on November 5, 1984.  “[T]he allegations of the information, rather than the enumeration of a specific statutory reference or definition, determine what offenses are charged.  (People v. Thomas (1987) 43 Cal.3d 818, 826 [239 Cal.Rptr. 307, 740 P.2d 419]․)  An erroneous reference to a statute in a pleading is of no consequence provided the pleading adequately informs the accused of the act he is charged with having committed.  (Id., at p. 827 [239 Cal.Rptr. 307, 740 P.2d 419];  Isaac v. Superior Court (1978) 79 Cal.App.3d 260, 262 [146 Cal.Rptr. 396]․)”  (People v. Ellis (1987) 195 Cal.App.3d 334, 339, 240 Cal.Rptr. 708.)

II

Dill contends his 1984 conviction in Illinois for residential burglary was not properly deemed a prior serious felony conviction within the meaning of section 667 and his 1979 burglary conviction in Illinois was not properly deemed a prior felony conviction within the meaning of section 667.5, subdivision (b).

 Section 667, subdivision (a), provides for imposition of a five-year enhancement where a defendant has been previously convicted “of any offense committed in another jurisdiction which includes all of the elements of any serious felony, ․”  (Italics added.) 3

Section 667.5, subdivision (b), provides for imposition of a one-year enhancement for each prior separate prison term served for any felony if the defendant has not remained free of prison custody for five years.   Subdivision (f) of section 667.5 discusses foreign prior convictions and states in relevant part:  “A prior conviction of a particular felony shall include a conviction in another jurisdiction for an offense which includes all of the elements of the particular felony as defined under California law․”  (Italics added.)

It appears clear from the statutory language that in order for a prior foreign conviction to properly sustain either a section 667 or a section 667.5 enhancement, the elements of the foreign crime must include all elements of the corresponding California crime.   In other words, “enhancement is only permissible when the elements of the foreign crime, as defined by that jurisdiction's statutory or common law, include all of the elements of the California felony.”  (People v. Crowson (1983) 33 Cal.3d 623, 632, 190 Cal.Rptr. 165, 660 P.2d 389, fn. omitted.)  Crowson involved a one-year enhancement under section 667.5 for a prior federal conviction for drug conspiracy.  People v. Ellis, supra, 195 Cal.App.3d 334, 240 Cal.Rptr. 708, involved a five-year enhancement under section 667 for a prior federal bank robbery conviction.   Citing Crowson, supra, the Ellis court noted the “nearly identical” language in the two statutes concerning the qualification test for foreign convictions and applied the Crowson rule on foreign convictions to section 667.  (People v. Ellis, supra, 195 Cal.App.3d at p. 341, 240 Cal.Rptr. 708.)   We agree.   Under both section 667 and section 667.5, the test for whether a foreign conviction can support the enhancement is whether the elements of the foreign crime include all of the elements of the corresponding California felony.

 Dill makes a two-prong argument that the Illinois burglary statutes are not congruent with their California counterparts.   First, he focuses on the language “without authority he knowingly enters or without authority remains ” in the Illinois statutes.  (Italics added.)   Second, he points out there is not complete agreement between the Illinois Criminal Code and the California Penal Code on what crimes are felonies.

When Dill argues “a burglary in Illinois based on remaining within a building is not a burglary in California, which requires unauthorized entry in all cases,” he is wrong.   The gist of the crime of burglary in California is entering a building, etc., with the intent to commit a felony or theft.  (§ 459;  People v. Piner (1909) 11 Cal.App. 542, 105 P. 780.)   However, it is apparent from the long line of cases following People v. Barry (1892) 94 Cal. 481, 29 P. 1026 (see People v. Gauze (1975) 15 Cal.3d 709, 713, 125 Cal.Rptr. 773, 542 P.2d 1365) that one who remains on the premises without authority and with the accompanying intent also can be prosecuted for burglary in California.   Thus, it follows the Illinois statutory language of “without authority remains” is merely an explicit statutory statement that the burglary scenario involved in the Barry line of cases is included in the crime of burglary in Illinois.   In this respect the elements of the crime are the same in both states.   Moreover, a person in Illinois who remains in a building without authority has obviously entered the building;  thus, the requisite California element of entry is included in the Illinois burglary statutes.

 With respect to whether the Illinois felony that a defendant intends to commit when without authority he enters or remains in a building is a felony in California, Dill has not demonstrated in this appeal that his felonious intent would not constitute felonious intent in California.   At most, his argument suggests that the felonious intent element of the two states' statutes are not necessarily equal.   Without a showing that his argument has any application to the facts of this case, it is pure speculation—a mere hypothetical—and we need not consider it.  “Matters not presented by the record cannot be considered on the suggestion of counsel in the briefs.”  (People v. Hernandez (1957) 150 Cal.App.2d 398, 402, 309 P.2d 969.)

III

 Assuming arguendo that Dill's abstract argument that it is possible his Illinois burglary convictions were based on his specific intent to commit a felony that was not a felony in California is a sufficient challenge under People v. Crowson, supra, 33 Cal.3d 623, 190 Cal.Rptr. 165, 660 P.2d 389, the question remains whether he is estopped from making this argument on appeal.   After all, the very reason there is no evidence of his foreign convictions on this appeal is that Dill admitted the truth of the allegations.

In People v. Ellis, supra, 195 Cal.App.3d 334, 240 Cal.Rptr. 708, the court held the defendant was estopped from challenging on appeal the validity of a federal bank robbery conviction where she admitted as part of a plea bargain that the prior conviction was a serious felony within the meaning of section 667.  (People v. Ellis, supra, 195 Cal.App.3d at p. 347, 240 Cal.Rptr. 708.)

The Ellis court drew a distinction between a lack of jurisdiction in the fundamental sense on the one hand and an act merely in excess of jurisdiction on the other.  (People v. Ellis, supra, 195 Cal.App.3d at p. 343, 240 Cal.Rptr. 708;  see In re Griffin (1967) 67 Cal.2d 343, 346–348, 62 Cal.Rptr. 1, 431 P.2d 625.)   The Ellis court said:  “ ‘[J]urisdiction in the fundamental sense’ (a complete absence of authority with respect to the subject of the dispute)” cannot be conferred by consent or estoppel.   (People v. Ellis, supra, 195 Cal.App.3d at p. 343, 240 Cal.Rptr. 708, quoting People v. Garrett (1987) 192 Cal.App.3d 41, 49, 237 Cal.Rptr. 305.)   When the trial court merely acts “ ‘in excess of jurisdiction, i.e., beyond statutory authority,’ ” however, “consent or estoppel could supply jurisdiction for an act undertaken by the trial court merely in excess of its statutory power.”  (Ibid.)

Here, the matter was properly before the trial court.   Thus, any purported error by the court in imposing enhancements based on foreign convictions that Dill admitted but did not fall under sections 667 and 667.5 was an excess of statutory authority or an excess of jurisdiction rather than a lack of fundamental jurisdiction.  (People v. Ellis, supra, 195 Cal.App.3d at p. 343, 240 Cal.Rptr. 708.)  “Where a court is merely acting in excess of its jurisdiction, the defendant who agrees to such actions may be estopped later from challenging the court's actions on jurisdictional grounds.”  (People v. Jones (1989) 210 Cal.App.3d 124, 136, 258 Cal.Rptr. 294.)   Both Jones and Ellis rely on In re Griffin, supra, 67 Cal.2d 343, 62 Cal.Rptr. 1, 431 P.2d 625, in which the Supreme Court said:

“Whether [a defendant] shall be estopped depends on the importance of the irregularity not only to the parties but to the functioning of the courts and in some instances on other considerations of public policy.   A litigant who has stipulated to a procedure in excess of jurisdiction may be estopped to question it when ‘To hold otherwise would permit the parties to trifle with the courts.’  [Citation.]”  (Id. at p. 348, 62 Cal.Rptr. 1, 431 P.2d 625.)

Ellis, supra, and Jones, supra, dealt with plea bargains in which the defendants admitted foreign convictions that were used to impose enhancements pursuant to section 667.   The reviewing court upheld the enhancements, finding the defendants were estopped from challenging the admission or the imposition of the enhancement since the defendants were “unfairly manipulat [ing] the system” (Ellis, supra, 195 Cal.App.3d at p. 345, 240 Cal.Rptr. 708) or “ ‘trifling with the courts.’ ”  (Jones, supra, 210 Cal.App.3d at p. 136, 258 Cal.Rptr. 294).

The question remains whether the principles of estoppel prevent a defendant who—without benefit of a plea bargain—admits foreign convictions from asserting on appeal that the foreign convictions did not fall within the meaning of sections 667 and 667.5.

In People v. Thomas, (1986) 41 Cal.3d 837, 226 Cal.Rptr. 107, 718 P.2d 94, prior to trial the defendant admitted four prior serious felonies.   A key issue on appeal was whether such an admission is sufficient when it is not part of a plea bargain.  (Id. at p. 839, 226 Cal.Rptr. 107, 718 P.2d 94.)   A unanimous Supreme Court answered in the affirmative:

“A defendant may admit an enhancement for a variety of reasons:  as part of a plea bargain, as in People v. Jackson [ (1985) 37 Cal.3d 826, 210 Cal.Rptr. 623, 694 P.2d 736];  to obtain a perceived tactical advantage, such as keeping the convictions from the ken of the jury, as here;  because he believes it futile to contest the prosecution's proof;  or simply because he honestly knows the allegations to be true.   We know of no cases which hold that an admission induced by a plea bargain is any more effective to prove a contested allegation than admissions induced by some other motive.   To the contrary, when the sufficiency of an admission of a prior conviction is called into question, the only issue is whether the admission was voluntary, made by a defendant who has been informed of his constitutional rights and of the consequences of the admission.  (See In re Yurko (1974) 10 Cal.3d 857 [112 Cal.Rptr. 513, 519 P.2d 561]․)  An admission which meets those standards is binding whether or not defendant obtained an adequate consideration in return for the admission.”  (Id. 41 Cal.3d at pp. 844–845, 226 Cal.Rptr. 107, 718 P.2d 94.) 4

Here, we do not know why Dill admitted the priors, but we do know he had discussed the matter with counsel, acknowledged he understood the allegations and made the appropriate waivers.   It is entirely plausible that Dill believed it futile to contest the prosecution's proof or honestly knew the allegations were true.  (People v. Thomas, supra, 41 Cal.3d at p. 844, 226 Cal.Rptr. 107, 718 P.2d 94.)   In any event, because of Dill's admission, the prosecution did not offer its proof—the record of his prior foreign felony convictions—and consequently the prosecution's proof was not presented to the trial court and is not part of the record on appeal before this court.   Even though the consideration of a plea bargain was lacking here, to allow Dill to, in effect, preclude the introduction of the prosecution's proof into the record and then later challenge the validity of the priors when they are not part of the record is giving him carte blanche to manipulate the system.   Neither the law nor equity favors parties “ ‘having it both ways.’ ”  (People v. Ellis, supra, 195 Cal.App.3d at p. 347, 240 Cal.Rptr. 708;  People v. Otterstein (1987) 189 Cal.App.3d 1548, 1552, 235 Cal.Rptr. 108.)

Thomas, supra, 41 Cal.3d 837, 226 Cal.Rptr. 107, 718 P.2d 94, teaches the distinction between plea bargains and admissions is de minimis in such situations.   We find the policy considerations raised by the Ellis court also support the application of estoppel principles here where there was an admission but no plea bargain.   Thus, even assuming arguendo Dill's prior Illinois convictions did not fall within the meaning of sections 667 and 667.5, he would be estopped from challenging his admission of the prior convictions and the trial court's imposition of sentence enhancements based on the prior convictions.

IV

Dill contends that if this court deems his admissions binding, the enhancements should be invalidated on the basis of inadequate representation of counsel.   The contention is without merit.

 The burden of proving a claim of ineffective assistance of counsel is on Dill.  (People v. Pope (1979) 23 Cal.3d 412, 425, 152 Cal.Rptr. 732, 590 P.2d 859.)   To establish ineffective assistance of counsel, “a defendant must show that counsel (1) performed at a level below an objective standard of reasonableness under prevailing professional norms;  and thereby (2) subjected the defense to prejudice, i.e., in the absence of counsel's failings a more favorable outcome was reasonably probable.   (People v. Ledesma (1987) 43 Cal.3d 171, 216–218 [233 Cal.Rptr. 404, 729 P.2d 839]․)”  (People v. Hamilton (1988) 45 Cal.3d 351, 377, 247 Cal.Rptr. 31, 753 P.2d 1109.)   Dill has not shown either of these criteria;  hence he has not made a “prima facie case” of ineffective assistance of counsel.  (Id. at p. 378, 247 Cal.Rptr. 31, 753 P.2d 1109.)

On this record, Dill's reliance on People v. McCary (1985) 166 Cal.App.3d 1, 7–12, 212 Cal.Rptr. 114, is misplaced.   There is no showing here—only speculation—that Dill's foreign prior convictions were not valid prior convictions under sections 667 and 667.5.

DISPOSITION

Affirmed.

FOOTNOTES

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

2.   The trial court granted the prosecutor's motion to dismiss the second prior felony conviction allegation because it was duplicative of the first allegation—the prior serious felony conviction allegation.

3.   Subdivision (d) of section 667 provides:  “As used in this section ‘serious felony’ means a serious felony listed in subdivision (c) of Section 1192.7.”   Subdivision (c) of section 1192.7 provides in pertinent part:  “(18) burglary of an inhabited dwelling house․”

4.   In People v. Richard (1987) 189 Cal.App.3d 1159, 234 Cal.Rptr. 747, after a jury convicted the defendant of first degree murder, he admitted three prior serious felony allegations within the meaning of section 667.   Relying on Thomas, supra, 41 Cal.3d 837, 226 Cal.Rptr. 107, the Richard court held the defendant's admissions of the prior convictions “were not limited in scope only to the fact of the convictions, but extended to all allegations concerning the prior convictions contained in the information.   He is now bound by his admissions.”  (People v. Richard, supra, 189 Cal.App.3d at p. 1162, 234 Cal.Rptr. 747, original italics.)

TODD, Acting Presiding Justice.

BENKE and HUFFMAN, JJ., concur.