PEOPLE v. WALKER (1996)

I. INTRODUCTION

In this case we hold:  (1) an inhabited vessel or floating home is not an inhabited dwelling house or building within the statutory definition of burglary as a serious felony, and thus proof that a prior burglary was in the first degree, without proof of the nature of the burglary, does not establish a serious felony;  and (2) reversal of a true finding on a prior serious felony conviction allegation precludes retrial of the allegation under double jeopardy principles.¹

II. BACKGROUND

The residence of Mary and Tom Duarte was burglarized sometime before 6 p.m. on June 3, 1994.   The perpetrator stole a $40,000 car, stereo and video equipment, and other household items.   At 7:45 p.m., a police officer spotted David R. Walker driving the car with other stolen items some 2.4 miles away and arrested him.

The case went to a jury on two alternative theories:  Walker was the burglar and was therefore guilty of burglary (Pen.Code, § 459), grand theft (Pen.Code, § 487, subd. (a)), and automobile grand theft (Pen.Code, § 487h, subd. (a)), or he was not the burglar but was guilty of receiving stolen property (Pen.Code, § 496) and unlawfully driving a vehicle (Veh.Code, § 10851).   The jury convicted him of the three counts arising from the first theory, and also found true allegations that he had a prior serious felony conviction in 1992 for first degree burglary (Pen.Code, § 667) and had served three prior prison terms (Pen.Code, § 667.5, subd. (b)).  The judge imposed the middle term of four years for burglary, doubled to eight years under the Three Strikes law (Pen.Code, § 667, subd. (e)(1)), plus a one-year enhancement for one of the prior prison terms, and stayed sentencing on the other counts and enhancements.

III. DISCUSSION

A. Instruction on Reasonable Doubt**

B. Evidence of the Prior Burglary Conviction

Walker correctly contends there was insufficient evidence of a prior serious felony conviction for burglary in 1992.

 The problem arises from the enumeration of burglary as a serious felony in subdivision (c)(18) of Penal Code section 1192.7.   To be a “strike” under the Three Strikes law, or to invoke a five-year enhancement, a burglary must be a serious felony as defined by subdivision (c)(18).  (Pen.Code, § 667, subds. (a)(4) & (d)(1).)   Subdivision (c)(18) enumerates “burglary of an inhabited dwelling house, or trailer coach as defined by the Vehicle Code, or inhabited portion of any other building.”   First degree burglary, however, is more inclusive;  it consists of not only the types of burglaries enumerated in subdivision (c)(18), but also burglary of an inhabited “vessel” or “floating home.”  (Pen.Code, § 460, subd. (a).)  Thus, proof that a prior burglary conviction was in the first degree is not enough to establish that the burglary was a serious felony;  there must be proof that the burglary was of an inhabited dwelling house or trailer coach or inhabited portion of any other building, and not of an inhabited vessel or floating home.   Such proof is absent from the present record.

 The People argue that an inhabited vessel or floating home is an inhabited “dwelling house” or “building” within the meaning of subdivision (c)(18) and the burglary statutes.³  We conclude otherwise, for several reasons.

First, boats have not historically been treated as dwelling houses for purposes of first degree burglary.   An appellate decision in 1948, when nighttime burglary of an inhabited dwelling house was first degree burglary (Stats.1923, ch. 362, § 1), affirmed a second degree burglary conviction where the defendant burglarized an inhabited cabin cruiser at night.  (People v. Holt (1948) 88 Cal.App.2d 42, 198 P.2d 58.)   Inhabited vessels and floating homes were added to the statutory list of first degree burglaries (Pen.Code, § 460, subd. (a)) in 1989 and 1991, respectively.  (Stats.1989, ch. 357, § 3;  Stats.1991, ch. 942, § 15.)   Legislative materials underlying the 1989 addition clearly reflect the Legislature's understanding that burglary of an inhabited vessel was of the second degree, and an intent to change such offense to first degree burglary.  (Assem.Com. On Public Safety, rep. on A.B. 162 (Mar. 14, 1989);  Assem.   Com. On Public Safety, Republican Analysis of A.B. 162 (Aug. 28, 1989).)

 Second, the People's construction of the burglary statutes would reduce to surplusage the enumeration of vessels and floating homes, which is to be avoided.  (E.g., City and County of San Francisco v. Farrell (1982) 32 Cal.3d 47, 54, 184 Cal.Rptr. 713, 648 P.2d 935.)   Indeed, such construction would cause surplusage in a variety of penal statutes that maintain a distinction between a dwelling house or building and an inhabited vessel or floating home.  (Pen.Code, §§ 212.5, subd. (a);  § 213;  subd. (a)(1)(A);  337a, subd. (2);  12303.2.)

Finally, the People's construction “founders upon the plain meaning of plain words.”  (People v. Moreland (1978) 81 Cal.App.3d 11, 18, 146 Cal.Rptr. 118.)   In Moreland, where the court held that a 24–foot recreational vehicle was not an inhabited dwelling house or building within the meaning of Penal Code section 246 [discharge of firearm at inhabited dwelling house or building], the court asked rhetorically, “Would the ordinary citizen believe that such a vehicle is a house or building, any more than he would believe a 24–foot cabin cruiser or sail boat ․ is a house or building ․ ?” (Id. at p. 19, 146 Cal.Rptr. 118.)   The common sense answer is no.   The theme song for the 1960's television comedy Mr. Ed instructed us that “a horse is a horse.”   So too, a house is a house.   A boat is not a house.

It seems from the history of Penal Code section 1192.7 that at one time the Legislature expected all first degree burglaries to be treated as serious felonies.   Subdivision (c)(18) as originally adopted by initiative in 1982 prescribed “burglary of a residence.”  (Stats.1982, p. A–189.) The Legislature amended the statute in 1986 to prescribe, in its present form, “burglary of an inhabited dwelling house, or trailer coach as defined by the Vehicle Code, or inhabited portion of any other building.”  (Stats.1986, ch. 489, § 1.) At that time, Penal Code section 460 defined first degree burglary in precisely the same way (Stats.1982, ch. 1297, § 1), and thus all first degree burglaries were serious felonies.  (See People v. Harrell (1989) 207 Cal.App.3d 1439, 1445, 255 Cal.Rptr. 750 [1986 amendment to subdivision (c)(18) “made it consistent with the current definition of first degree burglary”].)   But when vessels and floating homes were added to section 460 in 1989 and 1991 (ante, p. 436), they were not added to subdivision (c)(18) of section 1192.7.   The result is that subdivision (c)(18) no longer mirrors subdivision (a) of section 460, and it is no longer true that all first degree burglaries are serious felonies.⁴  If this was, as the People contend, a legislative oversight, it is not our role to correct it through a tortured and indefensible statutory construction.   The only appropriate remedy is legislative.

Here, there was proof of nothing more specific than that Walker's prior burglary conviction was in the first degree.   The record contains no evidence that the burglary was of an inhabited dwelling house or trailer coach or inhabited portion of any other building—i.e., a serious felony as prescribed by subdivision (c)(18) of section 1192.7—and not an inhabited vessel or floating home.   We must therefore reverse, due to insufficient evidence, as to the finding of the prior burglary conviction.

C. Double Jeopardy

We further conclude that the effect of such reversal is to preclude retrial of the prior serious felony conviction allegations, under double jeopardy principles.  (U.S. Const., 5th Amend.;   Cal. Const., art.   I, § 15.) ⁵

The higher courts have so far avoided deciding this double jeopardy issue.   In People v. Morton (1953) 41 Cal.2d 536, 544, 261 P.2d 523, the California Supreme Court held that upon reversal of a prior conviction finding due to insufficient evidence, if the defects in proof were capable of correction on retrial then the appropriate procedure was a limited retrial on the prior conviction allegation.  Morton did not, however, address the double jeopardy implications.   Subsequently, in Burks v. United States (1978) 437 U.S. 1, 11, 98 S.Ct. 2141, 2147, 57 L.Ed.2d 1, the United States Supreme Court held that double jeopardy principles precluded retrial for a robbery after reversal due to insufficiency of the evidence:  “The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.”   In People v. Saunders (1993) 5 Cal.4th 580, 593, 20 Cal.Rptr.2d 638, 853 P.2d 1093, the California Supreme Court said, “We assume, without deciding, that double jeopardy principles apply to allegations of prior convictions.”   Then, in Caspari v. Bohlen (1994) 510 U.S. 383, –––– – ––––, 114 S.Ct. at 956–957 [127 L.Ed.2d 236, 249–250], the United States Supreme Court declined to decide “whether [the] Double Jeopardy Clause applies to noncapital sentencing,” noting that several federal and state court holdings were in conflict on the issue.   Most recently, in People v. Wiley (1995) 9 Cal.4th 580, 593, footnote 8, 38 Cal.Rptr.2d 347, 889 P.2d 541, the California Supreme Court, citing Morton and Caspari, likewise declined to decide the issue.

 The California Courts of Appeal, however, have repeatedly held since Burks that double jeopardy principles do apply to noncapital sentencing, precluding retrial of a prior conviction allegation after reversal of a true finding due to insufficiency of the evidence (People v. Brookins (1989) 215 Cal.App.3d 1297, 1309, 264 Cal.Rptr. 240 [prior serious felony conviction];  People v. Jones (1988) 203 Cal.App.3d 456, 460, 249 Cal.Rptr. 840 [prior prison term], disapproved on another point in People v. Tenner (1993) 6 Cal.4th 559, 566, fn. 2, 24 Cal.Rptr.2d 840, 862 P.2d 840) as well as retrial of a “no probation” allegation (People v. Bonner (1979) 97 Cal.App.3d 573, 575, 158 Cal.Rptr. 821).

We find the reasoning of then Presiding Justice Otto M. Kaus in the first of those cases, Bonner, especially persuasive.   There, the court reversed a finding that the defendant possessed a half-ounce or more of heroin for sale, which would have made him ineligible for probation (Pen.Code, § 1203.07) for the underlying substantive offense (Health & Saf.Code, § 11351).   This raised the issue whether the defendant could be retried on the issue of weight.   The People argued that Burks did not apply because the weight of the heroin did not change the offense, but only affected the punishment.   The court responded, “The People's argument puts an undue premium on labels.   If the State of California had defined two offenses, one of which prohibited the possession for sale of substances containing heroin in an amount of less than one-half ounce, with respect to which offense the trial court was authorized to grant probation and another offense called ‘possession for sale of one-half ounce or more of a substance containing heroin,’ with respect to which probation could not be granted, there could be no question that Burks applies.   From a constitutional point of view the result cannot be different simply because California achieves its purpose by ignoring the weight of the contraband in its definition of the offense, prescribing, however, different punishments which do depend on that very factor.   It is therefore our view that the double jeopardy clause as explicated in Burks prevents a retrial of the question of the amount of heroin which defendant possessed.”  (People v. Bonner, supra, 97 Cal.App.3d at p. 575, 158 Cal.Rptr. 821, fn. omitted.)

We similarly view the present case.   If the State of California had defined two classes of substantive offenses in the context of this case, depending upon whether Walker was a recidivist (e.g., simple automobile grand theft and recidivist automobile grand theft), Burks would clearly preclude retrial for the recidivist offense upon an appellate determination that there was insufficient evidence of the recidivism.   The result should be no different simply because California provides for increased punishment through a separate recidivism statute.

Absent any direction from the United States and California Supreme Courts, and given the unanimous approach of the California Courts of Appeal and the persuasive reasoning in Bonner, we conclude that double jeopardy principles bar retrial of the Penal Code section 667 allegations upon reversal, due to insufficiency of the evidence, of the findings of the prior burglary conviction.⁶

IV. DISPOSITION

The judgment is reversed with regard to the convictions for burglary and grand theft and the true findings of a prior serious felony conviction.   In all other respects the judgment is affirmed.   The cause is remanded with directions to the superior court to (1) dismiss the prior serious felony conviction allegations, (2) retry the defendant for burglary and grand theft should the district attorney exercise his discretion to reprosecute on those charges, and (3) resentence the defendant.

FOOTNOTES

1.   In the unpublished portion of this opinion we conclude the trial court erred in instructing the jury on reasonable doubt with regard to alternative theories of the case, requiring partial reversal.

FOOTNOTE.   See footnote *, ante.

3.   This issue, as to subdivision (a) of Penal Code section 667, is pending before the California Supreme Court in People v. Cruz (1995) 42 Cal.App.4th 1337, 39 Cal.Rptr.2d 668, review granted June 15, 1995 (S046075).

4.   We thus agree with Walker's additional claim that the trial judge erred in instructing the jury that first degree burglary is a serious felony.

5.   This double jeopardy issue is also pending before the California Supreme Court (ante, fn. 2).

6.   Because of this disposition, we do not reach Walker's contention that the court erred in imposing Three Strikes sentencing because the prior burglary predated the Three Strikes law.   However, we and other courts have rejected such arguments in other cases.  (People v. Sipe (1995) 36 Cal.App.4th 468, 484–489, 42 Cal.Rptr.2d 266;  People v. Anderson (1995) 35 Cal.App.4th 587, 592–600, 41 Cal.Rptr.2d 474;  People v. Reed (1995) 33 Cal.App.4th 1608, 40 Cal.Rptr.2d 47.)

KING, Associate Justice.

PETERSON, P.J., and HANING, J., concur.