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Court of Appeal, Second District, Division 7, California.

The PEOPLE, Plaintiff and Respondent, v. Kennis WATKINS, Defendant and Appellant.

Cr. 43725.

Decided: March 22, 1984

Quin Denvir, State Public Defender, Richard Lennon, Deputy State Public Defender, under appointment by the Court of Appeal, for defendant and appellant. John K. Van De Kamp, Atty. Gen., Norman H. Sokolow and Shunji Asari, Deputy Attys. Gen., for plaintiff and respondent.

At issue in this case is whether a five-year sentence enhancement for a prior “serious felony” under Penal Code section 667 1 may be imposed when the prior judgment merely reflects a conviction of “attempted burglary.”   We hold that the court may not look behind the minimum adjudicated elements of the judgment to determine if the prior conduct might constitute “burglary of a residence” and will strike the enhancement.

In 1979, following a submission on the preliminary transcript, Kennis Watkins was found guilty by the Ventura Superior Court in case CR 14810 of a lesser included offense of “attempted burglary,” in violation of sections 664 and 459.   The court did not specify any degree of burglary.   The court sentenced defendant to state prison for the upper term of one and one-half years, but suspended execution of said felony sentence and granted defendant probation with county jail time.

On June 8, 1982, the Proposition 8 initiative was approved by the voters which added section 667 to the Penal Code, increasing the punishment for repeat offenders of any crime defined as a “serious felony.”

On October 27, 1982, in case CR 17713, defendant pleaded nolo contendere to the offense of robbery (§ 211), admitted use of a firearm in the robbery (§ 12022.5), and admitted the 1979 conviction of a “prior serious felony” of “attempted burglary.”

On November 24, 1982, the Ventura Superior Court sentenced defendant to 12 years in state prison in CR 17713, consisting of an upper term of five years for robbery, plus consecutive enhancements of two years for firearm use and five years for the purported prior “serious felony” of attempted burglary.   In accordance with a conditional court commitment at the time of the plea in CR 17713, defendant was sentenced concurrently in two pending probation violation cases (CR 14810 [the 1979 attempted burglary] and CR 16709 [possession of marijuana in jail].)

This appeal from the sentencing in CR 17713 followed.

Imposition of a Five-Year Enhancement for a Prior Serious Felony Was Improper

Defendant's sentence should not have been enhanced by five years for a prior serious felony conviction of “attempted burglary” under section 667.   Subdivision (a) of that section provides in pertinent part:  “Any person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a [consecutive] five-year enhancement for each such prior conviction on charges brought and tried separately.”   Attempted “burglary of a residence” is included among the list of serious felonies.  (See §§ 667, subd. (d);  1192.7, subds. (c)(8), (25).)   However, other types of burglary are not.

In People v. Crowson (1983) 33 Cal.3d 623, 190 Cal.Rptr. 165, 660 P.2d 389, in an analogous situation involving enhancement for a prior foreign conviction, our Supreme Court held that enhancement is permissible only when the minimum adjudicated elements of the foreign crime include all the elements of the California offense.   The court stated:  “ ‘The least adjudicated elements of the prior conviction remain the same whether it is questioned in the trial court at the time of the determination of habitual criminality or ․ after such determination becomes final.   Neither the People nor the defendant can go behind those adjudicated elements in an attempt to show that he committed a greater, lesser, or different offense.  [Citations.]’ ․  [¶]  ․  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.]”  (Id., at p. 634, 190 Cal.Rptr. 165, 660 P.2d 389.)  (Italics in original.)

In People v. Lee (1984) 150 Cal.App.3d 455, 197 Cal.Rptr. 766, the court held that second degree burglary is not a “burglary of a residence” and is not a “serious felony” as defined in sections 667 and 1192.7 because the least adjudicated elements of second degree burglary do not involve residential burglaries.   As the Lee court stated:

“Second degree burglary does not have as an element entry of a residence;  therefore, that issue was not necessarily litigated in proving defendant's guilt.   The prosecutor may not go behind the unadjudicated element to show that defendant committed a greater offense.  Section 667, subdivision (a), states that a foreign conviction may not be used to enhance unless it ‘includes all the elements of any serious felony ․’  The same standard must apply to [a] defendant's second degree burglary conviction.”  (Id., at pp. 458–459, 197 Cal.Rptr. 766.)  (Italics in original.)

 Defendant's prior conviction was for attempted second degree burglary since the court did not specify any degree of the offense (§ 1192).   At that time, attempted second degree burglary included attempted burglary of all buildings except burglaries of “inhabited dwelling houses” or inhabited portions of any other buildings in the nighttime.  (See former § 460;  Stats.1978, ch. 579, § 23, p. 1985.)   Thus the issue of whether defendant entered a residence was not necessarily determined when he was convicted on the basis of his submission on the preliminary hearing transcript.

 Neither defendant's admission of the fact that he suffered a prior conviction under section 667, subdivision (a), nor any underlying facts which might be shown by a perusal of that transcript can be used to prove the elements of the prior conviction.

In determining whether defendant was convicted of a “serious felony,” the sentencing court should look exclusively to the previous judgment of conviction.   Even if the underlying facts of the previous attempted burglary conviction might establish a Proposition 8 “serious felony,” the sentencing court's inquiry is limited to the face of the earlier judgment.  (See People v. Crowson, supra, 33 Cal.3d at pp. 633–635, 190 Cal.Rptr. 165, 660 P.2d 389;  People v. Lee, supra, 150 Cal.App.3d at p. 458, 197 Cal.Rptr. 766.

Moreover, an admission of or stipulation to a prior conviction “does not preclude a defendant from later demonstrating that the [enhancement] ․ is unwarranted because his prior conviction does not fall within the class of convictions for which the statute authorizes such [enhancement].”  (People v. Crowson, supra, 33 Cal.3d at p. 627, 190 Cal.Rptr. 165, 660 P.2d 389, fn. 3.)   A court may not give effect to an enhancement unauthorized by law in computing a defendant's sentence under a plea bargain even though agreed to by the parties (People v. Cree (1981) 123 Cal.App.3d 1013, 1016, 177 Cal.Rptr. 54;  People v. Harvey (1980) 112 Cal.App.3d 132, 139, 169 Cal.Rptr. 153) or admitted by the defendant.

 Accordingly, since examination of the judgment itself does not reveal all the elements of a prior attempted burglary of a residence, defendant cannot receive a five-year enhancement under section 667 for that prior felony.2  We, therefore, will strike the five-year enhancement and modify the sentence to seven years.3


The abstract of judgment is modified to strike the five-year enhancement for a prior “serious felony” under Penal Code section 667 and reduce the total sentence to seven years.   As so modified, the judgment is affirmed.


1.   Unless otherwise indicated, all statutory references are to the Penal Code.

2.   We recognize that our conclusion is contrary to the recent decision of People v. Johnson (1984) 153 Cal.App.3d 301, 200 Cal.Rptr. 350, which characterized this result as creating an “Alice in Wonderland.”   However, think of all the fun Lewis Carroll would have had with Alice sentenced to spending an extra five years in jail because she admitted to having fallen into the looking glass “within the meaning of Penal Code section 459 and Penal Code section 667(a)”, 153 Cal.App.3d at p. 304, 200 Cal.Rptr. 350, or, as in this case, to “a prior serious felony.”

3.   Because of the court's conditional commitment to sentence defendant concurrently on his probation violations, the People request us to afford them the option of either permitting the judgment to stand with the sentence modified to seven years or remanding for resentencing with the opportunity to argue for consecutive sentencing on the probation violations.   As in People v. Cree, supra, 123 Cal.App.3d at p. 1017, 177 Cal.Rptr. 54, we decline to do so.   Defendant's purported “bargain” did not include agreement to the imposition of a 12-year sentence but only that 12 years was the maximum;  the case cannot be remanded to restructure the sentence in order to maintain a 12-year maximum because the maximum sentence possible for the offenses charged in this case (CR 17713) is 7 years, which defendant received.   Furthermore, the People orally in court at the time of the plea and in their written felony disposition statement indicated they were making no concessions and would seek any authorized sentence;  and the probation report had recommended consecutive sentences on the probation violations.   Moreover, since defendant only filed a notice of appeal from the sentencing in CR 17713, there is a serious procedural issue as to whether the sentencing on the probation violations in cases CR 14810 and 16709 can be reached.

THOMPSON, Associate Justice.

SCHAUER, P.J., and JOHNSON, J., concur.

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