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

PEOPLE of the State of California, Plaintiff and Respondent, v. Eric HASKIN, Defendant and Appellant.

No. A050784.

Decided: January 09, 1992

Jeffrey A. Schafer, San Francisco, for defendant and appellant. Daniel E. Lungren, State Atty. Gen., George Williamson, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Ronald E. Niver, Stan M. Helfman, Supervising Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Eric Haskin appeals the sentence imposed for his conviction of second degree robbery (Pen.Code, §§ 211, 212.5, subd. (b)),1 contending the court imposed a greater sentence enhancement for a prior conviction than that authorized by the charging statute which he admitted.  (§ 667.5, subd. (b).)  We agree, and reverse.


Because appellant is not contesting his underlying robbery conviction, a discussion thereof is unnecessary.

In addition to the underlying robbery, the information contained four enhancement allegations:  three five-year terms under section 667 for prior serious felony convictions (a 1982 and 1977 residential burglary and a 1982 robbery) and one one-year term under section 667.5, subdivision (b) for a prior prison term for conviction of a 1979 burglary.

Trial on the enhancement allegations was before the court.   In the matter of the three section 667 enhancements, the court found the two 1982 convictions true and dismissed the 1977 conviction for insufficient evidence.   Defense counsel informed the court that appellant intended to admit the section 667.5 subdivision (b) prior prison term allegation.   The court observed that the allegation did not indicate whether the 1979 burglary was residential.   The People asked the court to make such a finding, based on their exhibit number two, the proceedings of the 1979 burglary conviction.   This exhibit included an information alleging appellant entered a residence;  a form signed by appellant, acknowledging his understanding he was charged with second degree burglary and the rights he was waiving by his guilty plea;  and an abstract of judgment indicating he was convicted of second degree burglary and sentenced to prison therefor.

Before making any finding the court asked appellant to admit the prior conviction as charged.   After appellant answered affirmatively, the court stated:  “And, taking judicial notice of the procedures, I read that in the information it is charged that he entered the residence of the victim.   So it was a residential burglary.”   The People then asked that appellant waive his rights regarding the enhancement he had admitted, and the following colloquy occurred:

“THE COURT:  All right.   You understand you didn't have to admit that?

“[APPELLANT]:  Yes, I do understand.

“THE COURT:  [Y]ou had a right to have me consider the evidence on it.


“THE COURT:  And, as a matter of fact you [prosecutor, presumably] did offer evidence, which assumes he does not admit it.  [¶ ]  I've got sufficient evidence, independent of his admission, to show that the fact is a valid prior.”

Appellant was subsequently sentenced, over his objection, to a five-year consecutive sentence for the 1979 burglary conviction.   The court reasoned that although appellant was charged in the instant information under section 667.5, subdivision (b), which imposes a one-year term enhancement, “the issue is what was he accused of and what did he do․  [T]he legal fact, taking judicial notice of the records of this Court, including the accusatory pleading, including his waiver of rights ․ and all the other factors [is] that it was a residential burglary, and, therefore, by operation of law, it's five years, whether it's pled five years or not five years․”  Although the court did not identify the statute upon which it based the five-year term, it was apparently relying on section 667, which provides that any person convicted of a “serious felony,” which includes burglary of an inhabited dwelling house (§ 667, subd. (d);  § 1192.7, subd. (c)(18)), shall receive a five-year enhancement for each prior conviction of a serious felony, as well as on People v. Guerrero (1988) 44 Cal.3d 343, 243 Cal.Rptr. 688, 748 P.2d 1150, which held that the trial court, in determining the truth of a section 667 allegation, may look beyond the abstract of judgment of the prior offense to the entire record of conviction.   The abstract of judgment in the instant case erroneously identifies the challenged enhancement as a five-year enhancement under section 667.5, subdivision (b).



The principal issue is whether the court erred in sentencing appellant to a term greater than that authorized by the charging statute he admitted.

Due process requires that an accused be advised of the specific charges against him so that he may adequately prepare his defense and not be taken by surprise by evidence offered at trial.  (People v. Hernandez (1988) 46 Cal.3d 194, 208, 249 Cal.Rptr. 850, 757 P.2d 1013;  People v. Lohbauer (1981) 29 Cal.3d 364, 368, 173 Cal.Rptr. 453, 627 P.2d 183.)   This means that except for lesser included offenses, an accused cannot be convicted of an offense of which he has not been charged, regardless of whether there was evidence at his trial to show he committed the offense.  (People v. Toro (1989) 47 Cal.3d 966, 973, 254 Cal.Rptr. 811, 766 P.2d 577.)   An exception exists if the accused expressly or impliedly consents or acquiesces in having the trier of fact consider a substituted, uncharged offense.  (Ibid.;  Peple v. Ramirez (1987) 189 Cal.App.3d 603, 622, 236 Cal.Rptr. 404.)   The same rules apply to enhancement allegations.  (See People v. Jackson (1985) 37 Cal.3d 826, 835, 210 Cal.Rptr. 623, 694 P.2d 736.)

The instant information specifically alleged separate enhancements under sections 667 and 667.5, subdivision (b) for separate prior offenses.   Section 667 imposes a five-year consecutive term for each prior “serious felony” conviction when the new offense is also a “serious felony.”   Section 667.5, subdivision (b) enhances prison terms for new offenses by one year for “each prior separate prison term served for any felony.”   The latter statute does not attach any significance to the character or nature of the prior felony.   Thus, the allegation under section 667.5, subdivision (b) enhancement put appellant on notice that the People were seeking to prove merely that he served a prior prison term for a felony.   It also put him on notice that, should the People succeed in proving the allegation, he would be subject to no more than a one-year term in addition to the term imposed for the new offense.   The allegation did not put appellant on notice that the People were attempting to prove that the felony was a specific type of felony, nor did it put him on notice that he was subject to a five-year additional term.   In fact, its careful segregation from three other specific section 667 allegations notified appellant that the People recognized a distinction between the two statutes and that each required proof of different elements.

Adequate notice to the defendant of the offense with which he is charged is not determined solely by the charging statute.   A reference to an incorrect penal statute can be overcome by factual allegations adequate to inform the defendant of the crime charged.  (See People v. Thomas (1987) 43 Cal.3d 818, 239 Cal.Rptr. 307, 740 P.2d 419;  People v. Neal (1984) 159 Cal.App.3d 69, 205 Cal.Rptr. 384.)   In Neal, the defendant was charged with, inter alia, two sex offenses, and an allegation that he used a deadly weapon during the commission thereof, within the meaning of section 12022, subdivision (b), which imposes a one-year enhancement.   The jury found the allegation true, but the court sentenced defendant under section 12022.3, which imposes a three-year enhancement for each violation of designated sex offenses.  Neal concluded that because the information put defendant on notice that a sentence enhancement was sought, and further notified him of the facts supporting the allegation, he had not been misled to his prejudice by the incorrect statutory citation in the information, so the judgment did not require modification to reduce the enhancement to the one pleaded.

Here, appellant was charged under a specific enhancing statute-section 667.5, subdivision (b)-and the factual allegations thereto supported that charging statute.   However, those factual allegations were insufficient to support a section 667 enhancement, the statute upon which appellant's sentence was based.   A section 667 enhancement requires that the defendant be previously convicted of a “serious felony,” and burglary is not deemed a serious felony unless it was of an inhabited dwelling house.  (§ 1192.7, subd. (c)(18).)   The information alleged only that appellant had been convicted of burglary.   It made no allegation that the burglary was of an inhabited dwelling house, or a residence.   Furthermore, appellant's admission was limited to the “crime of burglary.”   He did not admit the character of the burglary, and all discussion thereof took place between the court and the prosecutor subsequent to his admission.  (See People v. Flores (1971) 6 Cal.3d 305, 98 Cal.Rptr. 822, 491 P.2d 406 [sentence on guilty plea to a specific crime can be no greater than that statutorily authorized for the crime admitted, despite post-plea evidence of facts supporting an enhancement].)

There is nothing in the record to suggest appellant impliedly consented to have the court consider the section 667.5, subdivision (b) allegation as a non-included section 667 enhancement.   The fact that he was willing to admit an enhancement carrying a penalty of one year, but refused to do so on the five-year enhancements, implies a contrary attitude.   As People v. Ramirez, supra, 189 Cal.App.3d at page 623, 236 Cal.Rptr. 404, notes, the cases concerned with uncharged offenses involve those in which the uncharged offense is a lesser offense.  “Conviction for an uncharged greater offense not only raises the problem of notice but makes the inference of consent more difficult, as there is no reason why a defendant should acquiesce in substitution of a greater for a lesser offense.”

Finally, it should be obvious that a court cannot accept a guilty plea or admission from a defendant, and thereafter accept evidence or make findings that change the character of the crime or enhancement admitted so as to increase the authorized punishment therefor.  (See, e.g., Boykin v. Alabama (1969) 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274;  People v. Hill (1974) 12 Cal.3d 731, 767, 117 Cal.Rptr. 393, 528 P.2d 1;  People v. Godfrey (1978) 81 Cal.App.3d 896, 902, 147 Cal.Rptr. 9;  People v. McDaniels (1958) 165 Cal.App.2d 283, 285, 331 P.2d 450.)

Because appellant was neither statutorily nor factually charged with, nor consented to, a substituted section 667 enhancement in conjunction with the 1979 offense, the trial court was without authority to impose a sentence greater than that authorized by section 667.5, subdivision (b), the charging statute which appellant admitted.


We also observe that the manner in which the enhancement was handled failed to properly apprise appellant regarding the required waiver of constitutional rights.  Boykin v. Alabama, supra, 395 U.S. at pages 242-244, 89 S.Ct. at pages 1711-1713 and In re Tahl (1969) 1 Cal.3d 122, 132, 81 Cal.Rptr. 577, 460 P.2d 449 together require that because a guilty plea forfeits important constitutional rights-the right to jury trial, the right to confront one's accusers, and the right against self-incrimination-the record must affirmatively demonstrate a voluntary, knowing, and intelligent waiver of these rights, and the court, before accepting a guilty plea, must specifically enumerate and explain the rights waived and obtain an express waiver of each of them.  In re Yurko (1974) 10 Cal.3d 857, 863-864, 112 Cal.Rptr. 513, 519 P.2d 561 holds that an admission of a prior conviction is akin to a plea of guilty, and the court is, therefore, required to give the Boykin/Tahl admonitions prior to accepting the admission, as well as advising the defendant of the penal consequences of his admission.

The waiver in the instant case did not comply with Boykin/Tahl/Yurko requirements-there was no mention of the right to trial by jury, of confrontation or against self-incrimination, and no mention of the maximum penalty.

The People concede that appellant's admission of his 1979 burglary conviction was defective because it was not preceded by an advisement and waiver of rights.   They contend the error is harmless because the the trial court admitted into evidence a certified copy of the file in the 1979 case, containing the information, reporter's transcript of change of plea, signed waiver of rights, and abstract of judgment and made a finding that the file was sufficient evidence, independent of appellant's admission, that the 1979 conviction was for a residential burglary.

The People's argument overlooks the fact that the court considered this evidence and sat as the finder of fact without first obtaining appellant's waiver of his right to a jury trial which, given appellant's expressed intention to admit the prior conviction, is mandated by Yurko.   The failure to admonish appellant of this constitutional right and obtain a waiver thereof before accepting his admission is reversible error.  (See People v. Ray (1990) 220 Cal.App.3d 943, 269 Cal.Rptr. 682.)

We note that this appeal and modification, with its attendant cost to the public, could easily have been avoided.   A reasonably careful examination of the information in this case should have alerted the prosecutor to the fact that the challenged enhancement not only failed to specify a statute imposing a five-year penalty, but also failed to allege facts necessary to support a five-year enhancement.

In addition, although the waiver of rights admonition is the court's responsibility, prosecutors hold an office of public trust and responsibility that imposes a duty upon them beyond that of mere advocate.   Consequently, in pursuing the advocate's role of obtaining a conviction and appropriate penalty, they should remain alert to constitutional restraints.   If the court fails to adhere to legal requirements, prosecutors should not hesitate, indeed it is their duty, to call those facts to the court's attention.   The Boykin/Tahl 3/4 Yurko mandates are well ingrained in our criminal jurisprudence and their absence, when required, should not go unrecognized with the frequency with which they continue to crop up on appeal.


That portion of the judgment imposing a five-year enhancement under section 667.5, subdivision (b), is reversed.   The abstract of judgment is amended to reflect a term of one year on the section 667.5, subdivision (b) enhancement.

HANING, Associate Justice.

LOW, P.J., and KING, J., concur.

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