PEOPLE v. VASQUEZ (1988)

Upon transfer from the California Supreme Court, we reconsider Manuel Luis Vasquez's appeal in light of People v. Guerrero (1988) 44 Cal.3d 343, 243 Cal.Rptr. 688, 748 P.2d 1150.   Vasquez was convicted of residential burglary (Pen.Code,2 § 459) and a separate attempted burglary (§§ 664/459) with findings he had incurred two prior serious felony convictions for residential burglary (§§ 667, subd. (a), 1192.7, subd. (c)(18)) and had served three prior and separate prison terms (§ 667.5, subd. (b)).  He originally contended the trial court improperly used his two pre–1983, second-degree burglary convictions to enhance his punishment and improperly went behind the admissible records of those convictions to prove each burglary was of a residence.   Now, in light of Guerrero, he urges the evidence is insufficient to prove either prior conviction involved burglary of a residence.   In addition, Vasquez contends the trial court erred in refusing to sever the burglary and attempted burglary trials.   For the reasons which follow, we conclude the trial court did not err in denying Vasquez's severance motion and properly found his 1982 conviction to be of a serious felony within the meaning of sections 667 and 1192.7.   However, after reviewing all documents presented to the trial court, we find no evidentiary basis to support a sentence enhancement for the 1981 second-degree burglary prior conviction and strike that five-year enhancement.   We affirm the judgment as modified.

I

Responding to a call regarding a residential burglary in progress at a residence (1965 Second Avenue), San Diego police officers saw Vasquez walking up the front stairs of a nearby apartment complex (230 Grape Street), turning his head in all directions to see whether he was being watched.   The officers followed Vasquez to apartment 3, where he knocked on the door several times, placed his ear against the door and attempted to turn the door knob.   Looking from side-to-side, Vasquez left the building;  stopped beneath the open window of apartment 1;  placed a wooden cabinet directly under the open window;  placed his hands on the window ledge and positioned his head and shoulders into the window;  and, suddenly pulled out his head, dropped to the ground and began walking toward the police officers.   He was stopped and a patdown search produced a gold ring and four earrings from his front pocket.   The officers were then approached by Marie Tucker, who advised them her home on Second Avenue had just been burglarized and the jewelry seized from Vasquez belonged to her and had been stolen from her residence.

Vasquez was charged in a single complaint with the Tucker residential burglary, receiving Tucker's stolen property (§ 496.1), and attempted burglary of the Grape Street apartment with allegations he had two prior serious felony convictions for residential burglary and had served three prior and separate prison terms.

II

Section 667, subdivision (a) provides a five-year sentence enhancement shall be imposed for each proved prior conviction of a serious felony designated in section 667, subdivision (d) and section 1192.7, subdivision (c).   This latter section includes burglary of a residence.  (§ 1192.7, subd. (c)(18).)   At the time Vasquez was convicted of the 1981 and 1982 second-degree burglaries, only burglary of an inhabited dwelling in the nighttime constituted a first-degree burglary.   At that time, residential daytime and all non-residential burglaries were of the second-degree.   Thus, a second-degree burglary conviction when Vasquez entered his pleas may, but need not have, involved entry of a residence.   Vasquez contends his prior 1981 and 1982 second-degree burglary convictions were based on guilty pleas not identifying the burglaries as residential and therefore the present trial court's mere review of the sentencing transcripts, the pleadings and the judgments, did not prove either was a prior residential burglary within the meaning of section 667, subdivisions (a) and (d) and section 1192.7, subdivision (c)(18).

In our now vacated decision in this case, we relied on earlier precedent established by People v. Crowson (1983) 33 Cal.3d 623, 190 Cal.Rptr. 165, 660 P.2d 389, People v. Jackson (1985) 37 Cal.3d 826, 210 Cal.Rptr. 623, 694 P.2d 736, and People v. Alfaro (1986) 42 Cal.3d 627, 230 Cal.Rptr. 129, 724 P.2d 1154.   In People v. Jackson, supra, 37 Cal.3d 826, 210 Cal.Rptr. 623, 694 P.2d 736, the court declared that in proving a prior conviction was a “serious felony” for the purpose of the five-year enhancement under the cited sections, proof was limited to matters necessarily established by the prior conviction.   Reaffirming its prior holding in People v. Crowson, supra, 33 Cal.3d 623, 190 Cal.Rptr. 165, 660 P.2d 389, the court in Jackson found:

“Crowson established two propositions relevant to the present case:  (1) that proof of a prior conviction establishes only the minimum elements of the crime, even if the charging pleading contained additional, superfluous allegations;  and (2) that the prosecution cannot go behind the record of the conviction and relitigate the circumstances of the offense to prove some fact which was not an element of the crime.”  (People v. Jackson, supra, 37 Cal.3d at p. 834, 210 Cal.Rptr. 623, 694 P.2d 736;  accord People v. Thomas (1986) 41 Cal.3d 837, 840, 226 Cal.Rptr. 107, 718 P.2d 94;  see People v. Dillingham (1986) 186 Cal.App.3d 688, 697, 231 Cal.Rptr. 20.)

Then, in People v. Alfaro, supra, 42 Cal.3d 627, 230 Cal.Rptr. 129, 724 P.2d 1154, the Supreme Court adhered to these holdings while addressing the issue of what precise evidence may be considered in determining whether a prior felony conviction involved a burglary of a residence.   After reaffirming its earlier holdings and reiterating the linchpin of its analysis as the doctrine of collateral estoppel, the court emphasized entry into a residence is an essential element of this serious felony enhancement and thus no prior California or foreign burglary conviction can be employed as a serious prior felony unless entry into a residence was an element necessarily adjudicated by that conviction.  (Id. at p. 632, 230 Cal.Rptr. 129, 724 P.2d 1154.)

In People v. Guerrero, supra, 44 Cal.3d 343, 243 Cal.Rptr. 688, 748 P.2d 1150, the Supreme Court expressly overrules People v. Alfaro, supra, 42 Cal.3d 627, 230 Cal.Rptr. 129, 724 P.2d 1154, and holds a trial court may look to the entire record of conviction to determine the substance of the prior conviction (People v. Guerrero, supra, 44 Cal.3d at p. 355, 243 Cal.Rptr. 688, 748 P.2d 1150).   Echoing the holdings of Supreme Court precedent relied on in Alfaro, the court declared that only “․ when the record does not disclose any of the facts of the offense actually committed, the court will presume that the prior conviction was for the least offense punishable under ․ law.”  (Ibid.)  Rationalizing its decision, the court explained:

“Such a rule is both fair and reasonable.   To allow the trier of fact to look to the entire record of the conviction is certainly reasonable:  it promotes the efficient administration of justice and, specifically, furthers the evident intent of the people in establishing an enhancement for ‘burglary of a residence’—a term that refers to conduct, not a specific crime.   To allow the trier to look to the record of the conviction—but no further—is also fair:  it effectively bars the prosecution from relitigating the circumstances of a crime committed years ago and thereby threatening the defendant with harm akin to double jeopardy and denial of speedy trial.”   (Ibid.)

Moreover, in response to the defense argument application of this rule would be unfair because it would permit enhancements based on fortuitious matters of no significance at the time of taking the plea, the court disagreed and essentially cast aside this “no incentive hurdle” by saying:

“The law regularly requires persons to suffer the consequences of their actions, even though they had not or could not foresee those consequences.   As pointed out in the dissent in Alfaro, ‘Of course the admission concerning the residential nature of the burglary was made without the knowledge that it could one day result in an enhanced sentence for later crimes.   That is true, however, of every guilty plea to a charge of felony:  it is seldom entered in anticipation of the commission of future crimes.   Nevertheless if there are subsequent crimes, in most instances there will be enhanced punishment.”   (Id. 43 Cal.3d at pp. 355–356, 243 Cal.Rptr. 688, 748 P.2d 1150, quoting People v. Alfaro, supra, 42 Cal.3d at p. 638, 230 Cal.Rptr. 129, 724 P.2d 1154 (dis. opn. of Mosk, J.).)

However, the Guerrero decision offers no guidance regarding “what items in the record of conviction are admissible and for what purpose or whether on the peculiar facts of an individual case the application of the rule set forth herein might violate the constitutional rights of a criminal defendant.”   (Id. at p. 356, 243 Cal.Rptr. 688, 748 P.2d 1150, fn. 1.)

III

We review the evidence submitted by the People to support both the 1981 and 1982 residential burglary findings, each of which, once proved, increased Vasquez's sentence by five years.

 As to the 1982 prior, the trial court relied on an information alleging burglary of a residence, a pleading which contained a separate allegation the burglary was of an inhabited dwelling within the meaning of section 462, subdivision (a).   In addition, the reporter's transcript and clerk's minutes show a specific plea of guilty to “burglary of the second-degree of a residence” with Vasquez expressly pleading guilty to the charge of second-degree residential burglary.   These documents provide ample proof that Vasquez's 1982 plea incorporated an express admission his crime involved the burglary of a residence within the meaning of sections 1192.7, subdivision (c)(18) and 667, subdivision (a).

 However, we find the evidence considered by the trial court to support a sentence enhancement for the 1981 second-degree burglary is insufficient to find it involved a residence.   Here, again, the People submitted only the original pleading, the change of plea form and transcript, abstract of judgment and sentencing transcript.   Unlike the 1982 pleading, the 1981 information does not separately allege the burglary was of a residence so as to trigger the prohibition against a grant of probation mandated by section 462, subdivision (a).   However, the felony charged is the burglary of an inhabited dwelling.   Apart from this unproved allegation in the information, the record contains no suggestion that Vasquez committed a residential burglary.   Instead, it simply reflects a bargained-plea to second-degree burglary on an undetailed factual basis in return for a prison sentence limited to 16 months.   Neither the change of plea form, the abstract of judgment, the colloquy at the time the plea was taken nor other admissible “evidence” was produced to support the court's finding the 1981 prior to be a serious prior felony for enhancement purposes.   The plea was not taken to second-degree burglary “as charged in the information,” or similar language.³  There is not even evidence Vasquez's attorney, let alone the court, advised him he was to enter a plea to burglary of a residence.   The record is as susceptible to an implication Vasquez did not contest the residential allegation because he had been advised it was irrelevant based on his plea bargain, as it is to one that this silent evidentiary record should be read as an admission of the residential nature of his second-degree burglary.   We hold it is not sufficient to establish the 1981 burglary conviction was of a residence beyond reasonable doubt.

IV *

DISPOSITION

The judgment is modified by striking the five-year enhancement imposed pursuant to sections 667, subdivision (a) and 1192.7, subdivision (c)(18) relating to the 1981 Los Angeles prior second-degree burglary.   In all other respects, the judgment is affirmed.

FOOTNOTES

FN2. Unless otherwise specified, all statutory references are to the Penal Code..  FN2. Unless otherwise specified, all statutory references are to the Penal Code.

3.   Had the information been read in context to Vasquez at the time he changed his plea, or had he been asked if he pleaded guilty “as charged,” we are satisfied his guilty plea would constitute an admission of all factual allegations therein.

FOOTNOTE.   See footnote 1, ante.

WORK, Associate Justice.

WIENER, Acting P.J., and BENKE, J., concur.