PEOPLE v. JOHNSON

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

The PEOPLE, Plaintiff and Respondent, v. Steven JOHNSON, Defendant and Appellant.

Cr. 43604.

Decided: March 20, 1984

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, Richard Lennon, Deputy State Public Defender, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Robert F. Katz, John R. Gorey and Lisa B. Lench, Deputy Attys. Gen., for plaintiff and respondent.

Defendant appeals from a judgment of conviction based upon his guilty plea to a charge of second degree burglary and his admission that he had suffered a prior conviction of second degree burglary within the meaning of both Penal Code section 667, subdivision (a) and Penal Code section 667.5, subdivision (b).

We filed an unpublished opinion affirming the judgment on August 17, 1983.   On December 1, 1983, the California Supreme Court granted defendant's petition for hearing and ordered that the matter be retransferred to this court for reconsideration in light of People v. Crowson (1983) 33 Cal.3d 623, 190 Cal.Rptr. 165, 660 P.2d 389.   We have reconsidered the matter in the light of Crowson and recent court of appeal decisions, and we have concluded that the judgment of the trial court should be affirmed.

FACTS

Defendant was charged with:  “the crime of burglary, in violation of Section 459, Penal Code of California, a felony committed as follows:  That the said STEVEN FRED JOHNSON, on or about the 13th day of July, 1982, at and in the County of Los Angeles, State of California, did willfully and unlawfully enter the residence, and building occupied by Lawrence Franklin with the intent to commit larceny.”  (Emphasis added.)   He was also charged with a prior conviction “of a serious felony, to wit, BURGLARY SECOND DEGREE, in violation of Section 459 of the Penal Code, (CASE # 43600);  within the meaning of Penal Code Section 667(a).  [¶] ․ [and] within the meaning of Penal Code Section 667.5(b).”

The reporter's transcript reflects the following dialogue which took place at the time the defendant entered his guilty plea and admitted the prior:

“MR. KELBERG:  On July 13, 1982, did you enter unlawfully a residence with the intent to steal some property?

“THE DEFENDANT:  Yes, I did.

“MR. KELBERG:  And you were previously convicted in February of 1980 in Orange County Superior Court of the felony of burglary in the second degree, and as a result of that, you were committed to state prison where you served a period of time in excess of one year, and that you have not remained free of said prison custody, that is you have been on parole for a period of—you have not remained free of prison custody, I should say, for a period of five years subsequent to the conclusion of your term in state prison for that prior offense before committing this new offense?

“THE DEFENDANT:  Yes.

“MR. KELBERG:  May I take the plea then?

“THE COURT:  Yes.

“MR. KELBERG:  As to the charge of burglary in the second degree contained in Information No. A381012, how do you now plead?

“THE DEFENDANT:  Guilty.

“MR. KELBERG:  And as to the allegation in the amendment to the Information that you have previously been convicted on February 22nd, 1980 in Orange County Superior Court of the serious felony of burglary in the second degree within the meaning of Penal Code section 459 and Penal Code section 667(a), and that as a result of that conviction, you were committed to the state prison where you served a separate term for that offense, and you did not remain free of prison custody and did commit an offense resulting in a new felony conviction during a period of five years subsequent to the conclusion of said term within the meaning of Penal Code section 667.5(b).

“Do you admit or deny that?

“THE DEFENDANT:  I admit.

“MR. KELBERG:  Does counsel join in the waivers and concur in the plea and admissions?

“MR. SALERNO:  Yes, I do.

“MR. KELBERG:  And the People join.

“MR. SALERNO:  And I do want to add one thing.   I want to indicate that the admission of the priors does not preclude argument on the sentence of the priors at the time of the probation and sentencing.

“MR. KELBERG:  The People agree, Your Honor.

“THE COURT:  I will find the plea and waivers and admissions have been freely, knowingly, and voluntarily made.”  (Emphasis added.)

Probation was denied and defendant was sentenced to a middle term of two years for the burglary and was given a five-year enhancement for a prior “serious felony” conviction pursuant to Penal Code section 667, subdivision (a).1

Defendant contends that under People v. Crowson, supra, 33 Cal.3d 623, 190 Cal.Rptr. 165, 660 P.2d 389, he could not have been found to have committed a burglary of a residence (and hence a “serious felony” within the meaning of Penal Code section 667, subdivision (a)) in connection with either his plea to the present charge or in connection with his admission of the prior conviction.

In Crowson, the defendant was charged with and stipulated to commission of a prior federal conviction under 21 U.S.C. § 846 (conspiracy to possess a controlled substance with intent to distribute) for purposes of sentence enhancement under Penal Code section 667.5, subdivision (b).  Penal Code section 667.5, subdivision (f) provides in part that, “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 if the defendant served one year or more in prison for the offense in the other jurisdiction.”  (Emphasis added.)   The prior federal crime in Crowson (21 U.S.C. § 846) did not explicitly make commission of an overt act an element of conspiracy as does California law.   The Supreme Court held that the difference between the basic elements of the foreign and the corresponding California felony precluded use of the foreign conviction for enhancement purposes pursuant to Penal Code section 667.5, subdivision (f).   The court held that use of the federal prior was barred even though the indictment filed with respect to the prior offense actually alleged two overt acts in support of the conspiracy charge.   The court stated (33 Cal.3d at p. 634, 190 Cal.Rptr. 165, 660 P.2d 389):  “But if, as we have concluded, proof of an overt act was not a required element of the federal offense, the allegations to which the People refer were entirely immaterial surplusage, and defendant would have had no reason or incentive to contest them in the federal proceeding.   In general, the doctrine of collateral estoppel regards as conclusively determined only those issues actually and necessarily litigated in the prior proceeding [citations] and the United States Supreme Court has noted that a guilty plea is simply an admission of ‘all the elements of a formal criminal charge.’  [Citation.]  If proof of an overt act was not required to sustain a conviction under the federal statute, neither a guilty verdict after a jury trial nor a plea of guilty may accurately be viewed as establishing that such an act occurred, regardless of the allegations of the charging pleading.”

Defendant argues that both his present and prior convictions were for second degree burglary, and that, since entry into a residence is not a necessary element of a second degree burglary conviction, his present as well as his prior conviction cannot be characterized as “serious felonies” within the meaning of Penal Code section 667, subdivision (a).

We believe the Crowson decision is factually distinguishable from this case.   Burglary was originally defined at common law as a violation of someone's habitation or living quarters.  (People v. Gauze (1975) 15 Cal.3d 709, 712, 125 Cal.Rptr. 773, 542 P.2d 1365;  People v. Guthrie (1983) 144 Cal.App.3d 832, 847, fn. 15, 193 Cal.Rptr. 54.)   By statute, the crime of burglary was expanded to include other types of buildings, tents, vessels, vehicles, aircraft, etc.   Until January 1983 (see Stats.1982, c. 1297, p. ––––, § 1) the main distinction between first and second degree burglary in California was whether the crime was committed in the daytime or the nighttime.   Thus, prior to January 1983, burglary of an inhabited dwelling place during the daytime was second degree burglary, although entry into other structures could also constitute second degree burglary.   Conversely, burglary of an inhabited dwelling place at nighttime was burglary in the first degree, although nighttime entry into an inhabited building other than a residence such as a motel (In re Richard W. (1979) 91 Cal.App.3d 960, 155 Cal.Rptr. 11), or an inhabited portion of a building, such as a bar where someone resided on the premises (People v. Savala (1970) 10 Cal.App.3d 958, 89 Cal.Rptr. 475), was also burglary in the first degree.

 In enacting Section 5 of Proposition 8, the people of the State of California sought, among other things, to increase punishment for habitual residential burglars, without regard to whether the burglary occurred at night or during the day, and hence, without regard to whether the burglary was of the first or second degree under the then applicable law.2  Defendant contends that since entry into a residence is not a necessary element of either first or second degree burglary under Penal Code section 459 and former Penal Code section 460, a plea of guilty to either first or second degree burglary or a prior conviction of either charge could not be found to be burglary of a residence, a serious felony under Penal Code section 667, subdivision (a).   It is defendant's position that in connection with the present conviction and the admission of the prior, the court cannot go behind the least adjudicated elements of the conviction.  (See In re Finley (1968) 68 Cal.2d 389, 392–393, 66 Cal.Rptr. 733, 438 P.2d 381;  People v. Lee (1984) 150 Cal.App.3d 455, 197 Cal.Rptr. 766.)

If we were to adopt defendant's arguments, no burglary conviction sustained prior to January 1983, whether of the first or second degree, could be used for enhancement purposes as a serious felony under Penal Code section 667, subdivision (a).   This result seems anomalous to us and contrary to the obvious intent of the people of the State of California as articulated in Proposition 8.   We disagree with the conclusion reached by the First District in People v. Lee, supra, 150 Cal.App.3d 455 at page 456, 197 Cal.Rptr. 766, that “Second degree burglary is not a ‘burglary of a residence’ and is not a ‘serious felony’ as defined in Penal Code sections 667, subdivision (a) and 1192.7, subdivision (c).”   Prior to January 1983, burglary of a residence could be either first or second degree burglary.  (See People v. Jackson (1983) 149 Cal.App.3d 1051, 1054–1055, 197 Cal.Rptr. 229.)   Where, as here, the defendant admitted during his guilty plea that he had unlawfully entered the residence of another with intent to steal some property, his express admission should foreclose him from arguing that his crime was not burglary of a residence.   Furthermore, defendant's admission of the charged prior was an express admission that his second degree burglary conviction was a “serious felony of burglary in the second degree within the meaning of Penal Code section 459 and Penal Code section 667(a).”   The only second degree burglary that constitutes a “serious felony” under those code sections is burglary of a residence.   Thus, the principle restated in People v. Crowson, supra, 33 Cal.3d 623, 190 Cal.Rptr. 165, 660 P.2d 389 to the effect that it was impermissible to go beyond the necessarily adjudicated elements of another conviction in an attempt to show the defendant committed a different offense has no application to the facts of this case.   A contrary conclusion would create an Alice in Wonderland result.3

In reaching this conclusion, we follow the lead of Division Two of this District in People v. O'Bryan (1984) 150 Cal.App.3d 1116, 198 Cal.Rptr. 603.   As did the court in O'Bryan, we believe this conclusion comports with the constitutional mandate of article I, section 28, subdivision (f) that “Any prior felony conviction ․ shall subsequently be used without limitation for purposes of ․ enhancement of sentence in any criminal proceeding.”

The judgment is affirmed.

FOOTNOTES

1.   Penal Code section 667, subdivision (a) which became part of California law as part of Proposition 8 (section five), the initiative approved by California voters in June 1982, provides in part that “Any person convicted of a serious felony who previously has been convicted of a serious felony ․ shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately.”  [Emphasis added.]  Penal Code section 1192.7, subdivision (c)(18) provides that burglary of a residence is a “serious felony.”

2.   The effective date of Penal Code section 667 as part of Proposition 8 is June 9, 1982.  (Cal. Const., art. II, § 10, subd. (a).)  Thereafter, the Legislature amended Penal Code section 460 to provide that any burglary of an inhabited dwelling place whether at night or in the day constitutes burglary of the first degree.  (Stats.1982, c. 1297, p. ––––, § 1.)

3.   “ ‘Then you should say what you mean,’ the March Hare went on.   ‘I do,’ Alice hastily replied;  ‘at least—at least I mean what I say—that's the same thing, you know.’  ‘Not the same thing a bit!’ said the Hatter.  ‘Why, you might just as well say that “I see what I eat” is the same thing as “I eat what I see”!’ ”  (Lewis Carroll, Alice's Adventures in Wonderland, ch. 6.)

FEINERMAN, Presiding Justice.

STEPHENS and ASHBY, JJ., concur.