PEOPLE v. VALLEJO LUGO (1991)

We hold (1) the preliminary hearing transcript from a prior proceeding may properly be used to determine whether a conviction was for a serious felony and the conviction subject, therefore, to use as an enhancement pursuant to Penal Code 1 section 667, subdivision (a), (2) the restrictions on double punishment defined in Code section 654 are a “limitation” on the use of prior convictions for the purposes of enhancement and pursuant to California Constitution, article I, section 28, subdivision (f), cannot be utilized to stay the execution of such enhancements and (3) trial courts nonetheless may dismiss such enhancements pursuant to section 1385.

I

BACKGROUND

Appellant Miguel Vallejo–Lugo pled guilty to one count of first degree burglary.  (§ 459/460.)   True findings were returned in a court trial on two allegations of prior prison terms within the meaning of section 667.5, subdivision (b), and allegations of three prior convictions for serious felonies within the meaning of section 667, subdivision (a).   Appellant was sentenced to the upper term of six years as to the burglary conviction and to three consecutive 5–year terms based on the prior serious felony conviction allegations.   Two consecutive 1–year terms based on the prior prison term allegations were imposed but stayed.

Appellant is a heroin addict and long-time residential burglar.   On two occasions after his release to parole, appellant was deported to Mexico and soon returned to the United States and committed additional residential burglaries.   He argues on this appeal the trial court erred in considering the preliminary hearing transcripts and probation reports from his prior convictions in determining that two of them were for the burglary of inhabited dwellings and thus subject to the enhancement for serious prior felony convictions provided by section 667, subdivision (a).  (Appellant concedes the finding as to the third prior serious felony conviction was proper.)   Appellant also argues the trial court erred when it concluded it had no discretion to impose two 1–year enhancements for the prior prison terms findings (§ 667.5, subd. (b)) and stay the execution of the three 5–year prior serious felony conviction enhancements (§ 667, subd. (a)).   We affirm in part and reverse in part.

II

DISCUSSIONA. Prior Conviction for the Burglary of Inhabited Dwellings

Three section 667, subdivision (a) prior serious felony allegations, based on convictions for the burglary of inhabited dwellings, were charged against appellant.   Conceding one of those allegations was properly found true, appellant argues the remaining two were not.   Appellant argues the information and change of plea forms from those prior cases, admitted into evidence in the present case, did not establish appellant was charged with or convicted of the burglary of an inhabited dwelling.   Appellant notes that to prove that fact the prosecutor introduced portions of the preliminary hearing transcripts and probation reports.   Citing People v. Guerrero (1988) 44 Cal.3d 343, 243 Cal.Rptr. 688, 748 P.2d 1150, appellant argues it is improper to base a true finding on a section 667, subdivision (a) allegation on such evidence.

Recently this court in People v. Castellanos (1990) 219 Cal.App.3d 1163, 269 Cal.Rptr. 93, reviewed Guerrero and concluded preliminary hearing transcripts are part of the “record of conviction” and a proper basis for determining that a prior burglary conviction involved a dwelling house.   (Id. at pp. 1170–1176, 269 Cal.Rptr. 93;  People v. Goodner (1990) 226 Cal.App.3d 609, 276 Cal.Rptr. 542

 The portions of the preliminary hearing transcripts admitted in this case sufficiently establish appellant's prior convictions were for the burglary of inhabited dwelling houses.   Therefore, the trial court properly found true the allegations of prior serious felony convictions pursuant to section 667, subdivision (a).   Since we find the preliminary hearing transcripts adequate evidence to support the true findings, it is unnecessary to consider the admissibility of the probation reports.  (See, however, People v. Williams (1990) 222 Cal.App.3d 911, 914–918, 272 Cal.Rptr. 212;  People v. Castellanos, supra, 219 Cal.App.3d at p. 1169, fn. 5, 269 Cal.Rptr. 93.)²

B. Discretion to Stay Execution of Section 667, Subdivision (a) Enhancements

1. Application of Section 654 to Prior Conduct Enhancements

Appellant notes the trial court found true three allegations of prior serious felony convictions pursuant to section 667, subdivision (a), and two allegations of prior prison terms pursuant to section 667.5, subdivision (b).  The trial court imposed three consecutive 5–year terms for the section 667, subdivision (a) priors and two 1–year terms for the section 667.5, subdivision (b) allegations.   Execution of sentence on the section 667.5, subdivision (b) terms was stayed pending completion of the remainder of the sentence pursuant to section 654.  (The three serious priors (§ 667, subd. (a)) and the two prison term priors (§ 667.5, subd. (b)) were based on convictions for the same burglaries.   The first alleged prior prison term was based on the same offenses alleged in the first and second prior serious felony conviction allegation, and the second prior prison term was based on the third alleged prior serious felony.)

Appellant observes the trial court had misgivings concerning the length of the sentence but believed it was powerless to impose a shorter term of imprisonment.   In so concluding, appellant argues the trial court erred.

Appellant's argument depends on two legal principles about which the courts of this state disagree:  first, that section 654 is applicable to enhancements—some courts conclude it is (see People v. Dobson (1988) 205 Cal.App.3d 496, 501, 252 Cal.Rptr. 423)—some conclude that it is not (see People v. Rodriguez (1988) 206 Cal.App.3d 517, 519, 253 Cal.Rptr. 633;  People v. Warinner (1988) 200 Cal.App.3d 1352, 1355, 247 Cal.Rptr. 197;  People v. Boerner (1981) 120 Cal.App.3d 506, 511, 174 Cal.Rptr. 629);  second, that if section 654 does apply to enhancements, the trial court has the discretion to impose the enhancement with the lesser term and stay the greater.   Again our courts disagree.  (See People v. Thompson (1989) 209 Cal.App.3d 1075, 1078–1086, 257 Cal.Rptr. 658.)

 We avoid the controversies.   We conclude that with regard to the enhancement defined by section 667, subdivision (a), a trial court is constitutionally foreclosed under California Constitution article I, section 28, subdivision (f), from staying such enhancement pursuant to section 654.   Section 28, subdivision (f), in pertinent part states that prior felony convictions shall “be used without limitation for purposes of ․ enhancement of sentence in any criminal proceeding.”   Staying an enhancement pursuant to section 654 is a limitation on the use of the enhancement.

In People v. Prather (1990) 50 Cal.3d 428, 267 Cal.Rptr. 605, 787 P.2d 1012, our Supreme Court recently dealt with the application of section 28, subdivision (f), to limitations on the use of enhancements.   In Prather the court considered whether the “double the base term” limitation of section 1170.1, subdivision (g), applied to a prior prison term enhancement under section 667.5, subdivision (b), or was barred by section 28, subdivision (f).

In interpreting section 28, subdivision (f), and its application to section 667.5, subdivision (b), and the double-the-base-term limitation of section 1170.1, subdivision (g), the court noted section 28, subdivision (f), was part of Proposition 8, an enactment aimed at achieveing more severe punishment for criminal acts.   This end was pursued in part by increasing the total imprisonment for recidivist offenders.   The court concluded from both its language and history, section 28, subdivision (f), indicated not only a general intent to increase the total length of sentences served by recidivists but specifically intended to abrogate, with respect to prior-felony-conviction enhancements, limitations on overall length of sentences including the limitation defined by section 1170.1, subdivision (g).   Thus, the enhancement imposed for a prior term of imprisonment pursuant to section 667.5, subdivision (b), is not limited by the double-the-base-term restrictions of section 1170.1, subdivision (g).

In applying section 28, subdivision (f), and Prather to the present question, we note the Supreme Court's warning that because of its expansiveness the term “without limitation” used in section 28, subdivision (f), is inherently ambiguous.   The court noted the very act of defining an enhancement, in terms of the types of prior convictions to which any given enhancement will apply and the manner in which that enhancement is to be computed, inherently limits its application.   The court stated:  “In short, the ‘without limitation’ language, taken to its literal extreme, might render meaningless all legislative criteria for sentence enhancements based on prior felony convictions because any affirmatively expressed criterion for enhancement necessarily ‘limits' by implication the use of others not specified.”  (People v. Prather, supra, 50 Cal.3d at p. 437, 267 Cal.Rptr. 605, 787 P.2d 1012.)

The court then provided the following approach to the application of the “without limitation” language of section 28, subdivision (f):  “Although article I, section 28, subdivision (f), may remove certain legislative and judicial obstacles to the use of prior convictions for enhancement purposes, it does not divest the Legislature of its basic power to define particular enhancements and determine the appropriate period by which a sentence may be increased as a result thereof.   Implicit in this interpretation is the notion that, in some cases, a particular statutory restriction on the use of an enhancement may be so integrally related to an enhancement provision that it may be said to constitute either an essential definitional element of the enhancement itself, or a necessary precondition to application of the enhancement in a particular context, in which case the definitional restriction should not be considered a ‘limitation’ for purposes of article I, section 28.”  (People v. Prather, supra, 50 Cal.3d at p. 438, 267 Cal.Rptr. 605, 787 P.2d 1012.)

By example the court noted while the Legislature could restrict enhancements to only “serious felonies,” it could not effectively prohibit an enhancement by imposing a general cap on the overall length of a sentence.   The court stated its example “indicates two important considerations in determining the permissibility of a limitation:  (i) the level of generality (e.g., does the restriction apply to a large number of different enhancements?), and (ii) the purpose behind the limitation (i.e., to define the applicable class of felons or restrict available penalties once a class of felons has been defined.)”  (People v. Prather, supra, 50 Cal.3d at p. 438, 267 Cal.Rptr. 605, 787 P.2d 1012.)

The court then applied this approach to the double-the-base-term limitation defined by section 1170.1(g).  “We are persuaded for the reasons discussed above, and in view of the language and history of article I, section 28, that general caps or ceilings on overall length of sentence, such as the one contained in 1170.1(g), are not of such conditional or definitional character and, accordingly, may not be applied to limit the use of prior convictions for sentence enhancement purposes.”  (People v. Prather, supra, 50 Cal.3d at p. 439, 267 Cal.Rptr. 605, 787 P.2d 1012.)

We are compelled to the same conclusion with regard to the application of section 654 to stay an enhancement based on a prior conviction.   If it is assumed section 654 applies to enhancements, there is no doubt it is a limitation on the enforcement of enhancements for prior felony convictions.

As noted, Prather interpreted section 28, subdivision (f) as intending “not only to increase the length of sentences served by recidivists offenders generally, but also specifically to abrogate (with respect to prior-felony-conviction enhancements) statutory ‘limitations on overall length of sentences.’ ”  (People v. Prather, supra, 50 Cal.3d at p. 436, 267 Cal.Rptr. 605, 787 P.2d 1012.)

 Section 654 is a general enactment applicable to a broad spectrum of offenses and, arguably, enhancements.   Its character is not to define offenses or enhancements but rather to limit punishment under certain circumstances.   The People through the device of article I, section 28, subdivision (f), have made such general limitations on punishment inapplicable to enhancements for prior felony convictions and thus section 654 does not apply to section 667, subdivision (a).   We note there is no constitutional impediment to double punishment for a single act if the Legislature clearly intended to impose that punishment.  (Missouri v. Hunter (1983) 459 U.S. 359, 366–367, 103 S.Ct. 673, 678–679, 74 L.Ed.2d 535 see concurring opinion of Eagleson, J., People v. Siko (1988) 45 Cal.3d 820, 827, 248 Cal.Rptr. 110, 755 P.2d 294.)   Contrary to appellant's argument, the trial court is constitutionally denied the discretion to stay execution of section 667, subdivision (a).

 This same analysis is applicable to section 667.5, subdivision (b).  We note while § 28, subd. (f) refers to enhancements for “prior felony convictions,” the Supreme Court has concluded the section applies equally to “prior prison terms” under section 667.5, subdivision (b).  (People v. Prather, supra, 50 Cal.3d at p. 439–440, 267 Cal.Rptr. 605, 787 P.2d 1012.)   Thus, not only do we reject appellant's argument the trial court erred in failing to exercise its discretion and stay execution of section 667, subdivision (a), rather than section 667.5, subdivision (b), we are compelled to conclude the stay of the section 677.5, subdivision (b) enhancement ordered pursuant to section 654 was improper.

Appellant cites People v. Pearson (1986) 42 Cal.3d 351, 228 Cal.Rptr. 509, 721 P.2d 595, for the proposition that the double-punishment restriction of section 654 is applicable to enhancements and that article I, section 28, subdivision (f), did not abrogate such restriction with regard to enhancements for prior convictions.

In Pearson the defendant was convicted of two counts of sodomy and two counts of lewd conduct, the four convictions arising from two acts.   The Supreme Court held it was proper to convict on all four counts but that pursuant to section 654, the defendant could only be punished for one of the two convictions arising from each act and it was necessary the sentence on the remaining counts be stayed.  (42 Cal.3d at pp. 354–358, 228 Cal.Rptr. 509, 721 P.2d 595.)

Conceding the issue was being prematurely considered, the Supreme Court, nonetheless, offered the advisory opinion that should the defendant be convicted in the future, only one of the convictions arising from each individual criminal act could be used to enhance any sentence.   The court stated:  “The question remains whether defendant can be subjected to future enhancements based on all four of his convictions in this case.   We conclude that he cannot.   Any subsequent sentence imposed on the defendant can be enhanced on the basis of the convictions for which he served a sentence;  but convictions for which sentence was stayed may not be used unless the Legislature explicitly declares that subsequent penal or administrative action may be based on such stayed convictions.”  (People v. Pearson, supra, 42 Cal.3d at p. 361, 228 Cal.Rptr. 509, 721 P.2d 595.)

The court disposed of any impediment to its decision based on the article I, section 28, subdivision (f), with these two sentences:  “Similarly, we are aware of article I, section 28, subdivision (f), of the California Constitution, which provides:  ‘Any prior felony conviction of any person in any criminal proceeding ․ shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding.’   The rule we announce here, however, does not ‘limit’ enhancements for prior convictions;  on the contrary, it allows such enhancements to the full extent that they are authorized by the Legislature.  (See People v. Castro (1985) 38 Cal.3d 301 [211 Cal.Rptr. 719, 696 P.2d 111].)”  (People v. Pearson, supra, 42 Cal.3d at p. 363, 228 Cal.Rptr. 509, 721 P.2d 595.)

Pearson is a pre-Prather opinion.  Prather teaches that legislatively defined restrictions on the use of enhancements are only proper when they essentially define the enhancement itself and not when they provide a general restriction on the length of sentences.   With the guidance of Prather we have determined that section 654 is not a section defining an enhancement but is rather a general restriction on the length of sentences and thus not applicable, pursuant to article I, section 28, subdivision (f), to enhancements based on prior convictions.   We believe we are compelled to follow Prather and to reject the advisory opinion rendered in Pearson.  (For the reasons set forth above we reject the holding in People v. Hopkins (1985) 167 Cal.App.3d 110, 212 Cal.Rptr. 888, that section 654 prohibits the imposition of enhancements under both sections 667 and 667.5, subd. (b), when both are based on the same underlying criminal act.)

2. Dismissal of Enhancements Pursuant to Section 1385

 We do not, however, order the reinstatement of the terms for the two 667.5, subdivision (b) enhancements.   It is clear the trial court had misgivings concerning the length of the sentence and attempted to limit it.   We determine while the impact of the enhancements here could not be mitigated by use of section 654, the trial court did have the power under section 1385 to dismiss the section 667.5, subdivision (b) enhancement.

In People v. Fritz (1985) 40 Cal.3d 227, 219 Cal.Rptr. 460, 707 P.2d 833, our Supreme Court held that article I, section 28, subdivision (f) of the California Constitution did not eliminate the trial court's traditional power pursuant to section 1385 to strike a prior conviction for sentencing.   The court concluded that “absent a clear expression of legislative intent [to eliminate a trial court's 1385 authority], a sentencing statute will not be construed to abrogate a trial court's general section 1385 power to strike.”   (Id. at p. 230, 219 Cal.Rptr. 460, 707 P.2d 833.)

Fritz dealt specifically with the section 667 enhancement for prior conviction of a serious felony.   The Legislature, in response to Fritz, amended sections 667 and 1385, to eliminate the power of trial courts to strike section 667 enhancements by use of section 1385.   The Legislature stated:  “It is the intent of the Legislature to abrogate the holding in People v. Fritz ․ and to restrict the authority of the trial court to strike prior convictions of serious felonies when imposing an enhancement under Section 667 of the Penal Code.”  (Stats.1986, ch. 85, § 3, urgency, eff. May 6, 1986.)

Fritz has not been overruled.  Fritz made a general statement that section 1385 power survived the enactment of article I, section 28, subdivision (f) and applied that holding specifically to the power to dismiss section 667 enhancements.   The Legislature's response was to the specific application of section 1385 to section 667 and not to the general proposition that section 1385 survives as a device for dismissing enhancements.   The Legislature has not abrogated the traditional power of courts to strike prior convictions found under sections 667.5, subdivision (b).   Since in this case the trial court had misgivings concerning the length of the term, we remand to allow the trial court to consider whether the two prior prison terms findings made under section 667.5, subdivision (b), should be stricken in the interest of justice pursuant to section 1385.

The trial court's order staying execution of the section 667.5, subdivision (b) enhancements is reversed.   The matter is remanded for reconsideration of the imposition of those enhancements consistent with the reasoning of this opinion.   In all other respects the matter is affirmed.

FOOTNOTES

FN1. All statutory references are to the Penal Code unless otherwise specified..  FN1. All statutory references are to the Penal Code unless otherwise specified.

2.   By footnote appellant argues all other considerations aside, the preliminary hearing transcripts and probation reports offered were not certified copies and thus were inadmissible.   No objection on this basis was made below and it is waived.

BENKE, Acting Presiding Justice.

NARES and LIM,* JJ., concur.