PEOPLE v. GUZMAN (1990)

 One of the habitual criminal statutes mandates the imposition of an additional consecutive term of five years on defendants convicted of a serious felony who have previously been convicted “of any offense committed in another jurisdiction which includes all of the elements of any serious felony, ․” (Pen.Code, § 667, subd. (a).)  The principal question in this case is whether a prior out-of-state conviction for a crime which is missing one of the elements of its California counterpart may nevertheless qualify as a serious felony when the record of that foreign conviction reveals evidence of the missing element.   We hold that such a foreign conviction does not qualify as a serious felony.

After a jury convicted him of robbery (Pen.Code, § 211 [further statutory references to sections of an undesignated code are to the Penal Code] ) and the court found the allegation of a prior serious felony conviction in Texas to be true (§ 667, subd. (a)), defendant was sentenced to the three-year midterm for the robbery and a consecutive five-year term for the prior serious felony.   On appeal, defendant argues that the trial court improperly imposed the five-year enhancement for the prior Texas conviction because it does not qualify as a serious felony, erroneously denied his motion for a mistrial in regard to jury selection, and mistakenly failed to instruct the jury about voluntary intoxication.   In the published portion of this opinion, we consider and set aside the serious felony enhancement.   In the unpublished part we review and reject the remaining contentions.   Accordingly, we shall affirm the judgment as modified.

Because the facts of the current offense relate to only the discussion of the jury instruction, we shall defer our recital of those facts until that discussion.

DISCUSSION

ISERIOUS FELONY ENHANCEMENT

The amended information alleged that defendant had been convicted in August of 1981 in Bexar County, Texas “of a serious felony offense, to wit, aggravated robbery, within the meaning of Penal Code Sections 667 and 1192.7(c).”  Before trial, defendant moved to strike the allegation on the ground that the elements of aggravated robbery in Texas were not the same as the elements of a California robbery.   Quoting People v. Crowson (1983) 33 Cal.3d 623, 632, 190 Cal.Rptr. 165, 660 P.2d 389, defendant argued that the “enhancement is only permissible when the elements of the foreign crime, as defined by that jurisdiction's statutory or common law, include all of the elements of the California felony.”   The court denied the motion.

At the bench trial on the serious felony enhancement, the prosecutor introduced certified records of the Texas Department of Corrections.  (See § 969b.)   Included in those records was the grand jury indictment against defendant.   It charged defendant with the commission of aggravated robbery and alleged that “on or about the 9TH day of MAY, A.D., 1981, RICHARD S. GUZMAN, hereinafter called defendant, did then and there intentionally and knowingly threaten and place PAUL RIOS, hereinafter called complainant, in fear of imminent bodily injury and death, by using and exhibiting a deadly weapon, namely:  A SHOTGUN, while the said defendant was in the course of committing theft of property, namely, ONE (1) AUTOMOBILE, from said complainant, the owner of said property, without the effective consent of the said complainant, and said acts were committed by the said defendant with the intent then and there to obtain and maintain control of said property.”   Also among those records was the transcript of the proceedings of defendant's plea of guilty to the crime of aggravated robbery.   In the course of those proceedings, and as part of his written waiver of his constitutional trial rights, defendant signed a document in which he “judicially confesses that in Bexar County, Texas on May 9, 1981 [,] he intentionally & knowingly placed Raul Rios in fear of death & imminent bodily injury by exhibiting & threatening with a shot gun while he was in the course of stealing Raul Rios' automobile without his consent.”

The prosecutor relied upon the then recent decision in People v. Guerrero (1988) 44 Cal.3d 343, 243 Cal.Rptr. 688, 748 P.2d 1150, as authority for the proposition that even though the foreign crime omitted the California element of asportation, the conviction nevertheless qualified as a serious felony because the factual circumstances of the Texas case showed that the requirement of asportation had actually been met.   The defendant retorted that Crowson, and not Guerrero, controlled this case “in that the Court cannot go into the record in determining the elements of the offense.”   Disagreeing, the trial court found the enhancement to be true.  “The Court is satisfied that the reason is sound and is going to specifically find that the—pursuant to Guerrero, it is satisfied that it can look to the factual circumstances underlying the conviction.”   And those factual circumstances, the court found, disclosed that the element of asportation had been met.

As we have noted, the recidivist statute in question mandates the imposition of an additional consecutive term of five years on defendants convicted of a serious felony who have previously been convicted “of any offense committed in another jurisdiction which includes all of the elements of any serious felony, ․” (Pen.Code, § 667, subd. (a).)  Despite this statutory imperative, the Attorney General argues that the five-year enhancement may be imposed for a foreign crime which does not include all of the elements of its California counterpart so long as the record of that crime reveals evidence that defendant committed acts which, if perpetrated in California, would have rendered the perpetrator liable for prosecution for a serious felony.   This argument mistakes methodology for criteria and thus confuses what must be proved with how it can be proved.   How one proves the commission of the foreign offense has nothing to do with what the statute requires to be proved in the first place.   As we shall demonstrate, Crowson and not Guerrero controls this case.

We begin with the prior Texas offense.  Texas Penal Code section 29.02 defines robbery as follows:

“(a) A person commits an offense, if, in the course of committing theft as defined in Chapter 31 [¹ ] of this Code and with intent to obtain or maintain control of the property, he:  [¶] (1) intentionally, knowingly or recklessly causes bodily injury to another;  or [¶] (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.  [¶] (b) An offense under this section is a felony of the second degree.”

Texas Penal Code section 29.03 at the time in question defined aggravated robbery as robbery committed by a person who causes “serious bodily injury ․;  [¶] ․ or uses or exhibits a deadly weapon.”   Asportation is not required in Texas to commit theft (Barnes v. State (Tex.Crim.App.1974) 513 S.W.2d 850, 851;  Krause v. State (1947) 151 Tex.Crim. 197, 206 S.W.2d 257, 258) or, more specifically, to commit robbery.  (Woods v. State (1949) 153 Tex.Crim. 457, 220 S.W.2d 644.)  “ ‘Robbery is but an aggravated species of theft.   It was not necessary to show that he carried the property away in order to complete the offense․  The offense of robbery is complete when property is taken into possession as the result of an assault and with the intent to appropriate.’ ”  (Woods, supra, 220 S.W.2d at p. 646, citation omitted.)

 In California, the crime of robbery is included within the statutory definition of a serious felony.  (§§ 667, subd. (d);  1192.7, subd. (c)(19).)   Robbery in this state is defined as “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.”  (§ 211.)   Thus, “taking” is an element of robbery and consequently some asportation or carrying away of the stolen property must occur before the crime is committed.  (2 Witkin & Epstein, Cal.Criminal Law (2d ed. 1988) Crimes Against Property, § 641, p. 723.)   It is true that the “distance the property is taken may be very small.”  (People v. Salcido (1960) 186 Cal.App.2d 684, 687, 9 Cal.Rptr. 57.)   Nevertheless, some asportation must occur.  “Robbery is not completed at the moment the stolen property is in the robber's possession since the crime includes the element of asportation.”  (People v. Reade (1961) 197 Cal.App.2d 509, 512, 17 Cal.Rptr. 328.)   In short, if there is no asportation, there is no robbery in California.

The Attorney General concedes that the Texas offense of aggravated robbery does not require asportation and hence does not include all of the elements of the crime of robbery in California.²  That concession, one would think, should end the matter.   Since the Texas crime of aggravated robbery does not include “all of the elements of any serious felony” (§ 667, subd. (a)), it simply does not qualify as a serious felony for purposes of the habitual criminal statute.

 Instead, we are told by the Attorney General that “in determining the truth of a prior-conviction allegation, the trier of fact may look to the entire record of the conviction.”  (Guerrero, supra, 44 Cal.3d 343 at p. 355, 243 Cal.Rptr. 688, 748 P.2d 1150.)   Indeed, the Attorney General notes that the trial court, citing Guerrero, expressly found that asportation had occurred during the Texas robbery.   It is this finding that the Attorney General seeks to uphold and which undergirds the finding supporting the five-year enhancement.   The fatal flaw in the application of this reasoning is that unless it was an element of the offense, the question of asportation would never be “adjudicated” in the foreign jurisdiction.   Under the Restatement Second of Judgments, for purposes of collateral estoppel, an issue is actually litigated when it is “properly raised, by the pleadings or otherwise, and is submitted for determination and is determined.”  (Rest.2d Judgments, § 27, com. d, p. 255.)   California has adopted this formulation.³  (People v. Sims (1982) 32 Cal.3d 468, 484, 186 Cal.Rptr. 77, 651 P.2d 321.)   Thus, an “issue is actually litigated only when it is raised by the pleadings and factually resolved either by proof or failure of proof.”   (Betyar v. Pierce (1988) 205 Cal.App.3d 1250, 1254, 252 Cal.Rptr. 907.)   And when it is not, collateral estoppel is inapplicable.  (Id. at pp. 1254–1255, 252 Cal.Rptr. 907;  see also People v. Wilson (1985) 169 Cal.App.3d 1149, 1156–1157, 215 Cal.Rptr. 694;  People v. Rodriguez (1984) 160 Cal.App.3d 650, 654–655, 206 Cal.Rptr. 79.)   But only the elements of crimes and defenses raised against them are adjudicated in a criminal prosecution because they are the only issues raised by the pleadings.   Since asportation is not part of the crime of aggravated robbery in Texas, it was never raised as an issue by the Texas indictment.   Consequently, it was not material to the case and was never presented or determined in that prosecution.   Thus, the prior Texas conviction for aggravated robbery cannot be said to have conclusively resolved the question of asportation under the doctrine of collateral estoppel.   Because “only issues actually litigated in the initial action may be precluded from the second proceeding under the collateral estoppel doctrine” (Sims, supra, 32 Cal.3d 468, 484, 186 Cal.Rptr. 77, 651 P.2d 321), the fact of asportation cannot be included the adjudicated facts of the case.

A California court is not free to scour the foreign record in search of testimony in support of an unadjudicated, uncharged and immaterial issue, one which the accused would have no reason to contest.   If the Attorney General's approach were adopted, a California court would then become the trier of fact of a Texas offense on a fact not in issue in the original prosecution.   This would turn due process on its head.   In our view, it is self-evident that a California court is not constitutionally empowered to resolve a fact not in issue in a prior foreign prosecution in the post facto fashion suggested by the Attorney General.  “Due process of law,” the California Supreme Court has ruled, “requires that an accused be advised of the charges against him in order that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial.”  (People v. Lohbauer (1981) 29 Cal.3d 364, 368, 173 Cal.Rptr. 453, 627 P.2d 183, citations and quotation marks deleted.)   This ruling had long been foreshadowed by the highest court in the land.  “No principle of procedural due process is more clearly established,” the Supreme Court of the United States has declared, “than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal.”  (Cole v. Arkansas (1948) 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644, 647.)   By authorizing the belated adjudication of a factual issue not raised by the original charge and about which the accused had no notice, the Attorney General would deprive defendant of procedural due process.   His construction would also violate the Guerrero court's bar against the relitigation of the foreign crime by the prosecutor.   The proof of the prior conviction is limited to “the entire record of the conviction.”  (44 Cal.3d 343, 355, 243 Cal.Rptr. 688, 748 P.2d 1150.)   Such a restriction allowing the trier of fact to look to the record of conviction but no further was fair in the view of the Guerrero court because “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 speed trial.”  (Ibid.)  But this presupposes that the issue had in fact been litigated in the prior proceeding and that in turn postulates that the issue was an element of the foreign crime.   But if the issue was not an element of the foreign crime, it would never have been adjudicated in the prior proceeding and consequently would be litigated for the first time years later in California in a proceeding in which neither side can introduce new evidence on a question finally put in issue.

Nor does the construction advanced by the Attorney General explain how the California trier of fact is to resolve conflicts in the evidence on a question not in issue.   The fact of conviction says nothing about the question because it only establishes the commission of the defined crime.  (Crowson, supra, 33 Cal.3d 623, 634, 190 Cal.Rptr. 165, 660 P.2d 389;  see also McCarthy v. United States (1969) 394 U.S. 459, 466, 89 S.Ct. 1166, 1170, 22 L.Ed.2d 418, 425.)   Consequently, if the facts concerning asportation were in conflict, how would the California court resolve the conflict and on what legal basis?

In addition to these fundamental impediments, the reasoning of the Attorney General, if applied to other cases, would lead to absurd results.   By way of illustration, suppose defendant had been charged in Texas with the misdemeanor offense of simple assault.   Among other things, the victim testified that during the course of the assault defendant forcibly and against his will grabbed his fountain pen from his shirt pocket and fled with it.   Defendant tendered an alibi defense.   Assume further that defendant was duly convicted of the charged misdemeanor.   According to the construction urged by the Attorney General, this Texas misdemeanor conviction for assault could be used as the serious felony of robbery in a subsequent prosecution in California.   After all, the Texas conviction would constitute an “offense committed in another jurisdiction.”   The only remaining question would be whether that foreign conviction “includes all of the elements of any serious felony.”  (Pen.Code, § 667, subd. (a).)  In making that assessment, so this construction would have it, a California court would be entitled to review the entire Texas record to see if all of the elements of the crime of robbery in California had some evidentiary support.   If so, the five-year enhancement for robbery could validly be imposed.   This follows under this construction despite the fact that defendant was never charged with or convicted of robbery in Texas (not to mention that robbery in Texas does not include all of the elements of the California crime of robbery) and notwithstanding the fact that whether defendant in fact stole the pen was never adjudicated by anyone in Texas.   This analysis strikes us as being untenable.

Indeed, it was these concerns which prompted the Crowson court, construing a different recidivist statute, to hold that the “enhancement is only permissible when the elements of the foreign crime, as defined by that jurisdiction's statutory or common law include all of the elements of the California felony.”  (33 Cal.3d 623, 632, 190 Cal.Rptr. 165, 660 P.2d 389.)   The Court was interpreting language of section 667.5, subdivision (f), which provided for an enhancement if defendant served one year or more in prison for a prior conviction of a felony in another jurisdiction.   As defined, “[a] prior conviction of a particular felony shall include a conviction in another jurisdiction for an offense which includes all of the elements of the particular felony as defined under California law․”  The prior offense in that case involved a federal drug conspiracy.  (Id. at pp. 632–634, 190 Cal.Rptr. 165, 660 P.2d 389.)   Defendant contended that the enhancement was improper because the California crime of conspiracy requires an overt act while the federal conspiracy statute does not.   The Crowson court examined the meaning of “an offense” in the statute and concluded the identity of elements must be “to a specific crime as defined by law, and not simply to the actual conduct of the defendant.”  (Id. at p. 633, 190 Cal.Rptr. 165, 660 P.2d 389, emphasis in original.)   The court rejected the Attorney General's argument that even if the propriety of enhancements were ordinarily controlled by a comparison of the elements of the federal and California offenses, the elements of the offense should not be decisive in that case because the indictment in fact alleged two overt acts in support of the conspiracy charge.   The court's rejection was based upon principles of collateral estoppel.  “But if, as we have concluded, proof of an overt act was not a required element of the federal offense, the allegations to which the People refer were entirely immaterial surplusage, and defendant would have had no reason or incentive to contest them in the federal proceeding.   In general, the doctrine of collateral estoppel regards as conclusively determined only those issues actually and necessarily litigated in the prior proceeding and the United States Supreme Court has noted that a guilty plea is simply an admission of ‘all of the elements of a formal criminal charge.’   If proof of an overt act was not required to sustain a conviction under the federal statute, neither a guilty verdict after a jury trial nor a plea of guilty may accurately be viewed as establishing that such an act occurred, regardless of the allegations of the charging pleading.”   (Id. at p. 634, 190 Cal.Rptr. 165, 660 P.2d 389, emphasis in original and citations omitted.)   Since the elements of the federal conspiracy offense did not include all the elements of the corresponding California felony, the enhancement was not authorized by section 667.5, subdivision (f).  (Id. at p. 635, 190 Cal.Rptr. 165, 660 P.2d 389.)

Substantially the same analysis of another recidivist statute relating to prior foreign convictions had previously been made by the high court in In re Finley (1968) 68 Cal.2d 389, 66 Cal.Rptr. 733, 438 P.2d 381.   There the habeas corpus petitioner attacked the determination of habitual criminality under former section 644 on the ground that his prior Washington burglary conviction was not an offense which contained the minimum elements of the California definition of burglary and consequently did not qualify as a prior conviction under the statute.⁴  The Finley court agreed and set aside the adjudication of habitual criminality.  (Id. at p. 396, 66 Cal.Rptr. 733, 438 P.2d 381.)   As the court later explained it, “[i]n In re Finley ․ Chief Justice Traynor, writing for a unanimous court, reviewed the general principles applicable in determining whether a foreign conviction could be used pursuant to section 668 as a basis for increased punishment under the then-existing habitual criminal law.  (Former § 644.)   Chief Justice Traynor explained that such a determination ‘does not [involve] the opening or reopening of questions calling for resolution on the basis of the testimony of witnesses who may have died or disappeared or where memories have faded․  The fact that an accused suffered a foreign conviction of a crime is made officially of record at the time and place of such conviction, and the law of the jurisdiction where he suffered it is judicially noticed.  [Citations.]  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 on habeas corpus 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.]  (Italics added.)  (68 Cal.2d at pp. 392–393 [66 Cal.Rptr. 733, 438 P.2d 381].   See, e.g., In re McVickers, supra, 29 Cal.2d 264, 276 [176 P.2d 40].)”  (Crowson, supra, 33 Cal.3d 623, 633–634, 190 Cal.Rptr. 165, 660 P.2d 389.)

Thus, at the time of the enactment of the serious felony statute, it was settled law in California that recidivist statutes using such phrases as “a conviction in another jurisdiction for an offense which includes all of the elements of the particular felony as defined under California law” (§ 667.5, subd. (f)), and “been convicted in any other state ․ of an offense for which, if committed within this state, such person could have been punished under the laws of this state by imprisonment in a state prison” (§ 668), referred to the elements of the offense and not to criminal conduct.   Not surprisingly, then, it has been said that the comparable phrase of “elements of the offense” has “a settled meaning in California law ․, i.e., an essential component of the legal definition of the crime considered in the abstract.”  (People v. Read (1983) 142 Cal.App.3d 900, 903, 191 Cal.Rptr. 305.)   Nothing in the history of the adoption of the statute suggests that its use of the phrase “all of the elements of any serious felony” was not meant to connote this settled meaning.   Indeed, one searches in vain for any clue that the term “elements” was used in some novel way to include conduct.   The serious felony statute was adopted by the voters at the June 8, 1982, Primary Election as part of Proposition 8, an initiative measure known as “The Victims' Bill of Rights.”  (Brosnahan v. Brown (1982) 32 Cal.3d 236, 240, 244, 186 Cal.Rptr. 30, 651 P.2d 274.)   The voters' pamphlet contained no such hint.   The analysis by the Legislative Analyst merely notes the “measure includes two provisions that would increase prison sentences for persons convicted of specified felonies.   First, upon a second or subsequent conviction for one of these felonies, the defendant could receive, on top of his or her sentence, an additional five-year prison term for each such prior conviction, regardless of the sentence imposed for the prior conviction.   This provision would not apply in cases where other provisions of law would result in even longer prison terms.   Second, any prior felony conviction could be used without limitation in calculating longer prison terms.”  (Ballot Pamp., Primary Elec. (June 8, 1982) pp. 54–55, emphasis in original.)   Thus, the phrase comes freighted with much legal baggage and no suggestion of any extraordinary new meaning.   Hence, the phrase “all of the elements” should be construed according to its “peculiar and appropriate meaning in law.”  (§ 7, subd. 16.)   Indeed, it is a rubric of statutory construction that the use of language in the code “essential similar to that which had received judicial construction strongly indicates that a like construction was intended in the later legislation.”  (People v. West Side County Water Dist. (1952) 112 Cal.App.2d 228, 233, 246 P.2d 119.)

The Attorney General and the trial court have been led to their fallacious conclusion by their misapprehension of the holding in People v. Guerrero, supra, 44 Cal.3d 343, 243 Cal.Rptr. 688, 748 P.2d 1150.   First of all, Guerrero involved prior California convictions and not foreign convictions.   Thus, the court had no occasion to construe the language at issue here requiring the foreign crime to include “all of the elements of any serious felony.”  (Pen.Code, § 667, subd. (a).)  Second, at issue there was a special and unique serious felony, “burglary of a residence.”   In other cases, the court noted, “the application of section 667 is unproblematical:  virtually all of the ‘serious felonies' listed in section 1192.7(c) are in fact felonies specifically defined in the Penal Code.”  (Id. at p. 346, 243 Cal.Rptr. 688, 748 P.2d 1150.)   Thus, the issue before the court was “to what may the trier of fact look in determining whether the defendant suffered a prior conviction for ‘burglary of a residence?’ ”  (Id. at p. 348, 243 Cal.Rptr. 688, 748 P.2d 1150.)   It was in this context that the court held the trial court was entitled to look at the entire record to determine whether the prior burglary involved a residence rather than some other type of building.   But the Guerrero decision cannot be read to abrogate the statutory requirement of equivalency of elements for foreign convictions.   Indeed, the high court quoted at length from In re McVickers (1946) 29 Cal.2d 264, 176 P.2d 40, a discussion the court deemed “crucial to the question before us.”   (Id. 44 Cal.3d at p. 349, 243 Cal.Rptr. 688, 748 P.2d 1150.)   At issue in McVickers was whether defendant had been thrice convicted and served penitentiary terms for offenses listed in the former habitual criminal statute.   Petitioner claimed that two of his three prior convictions, one in Utah for grand larceny and the other a federal conviction for forging postal money orders, did not qualify as offenses under the statute.   The McVickers court held that the federal offense met the criteria of the statute but the Utah offense did not.⁵  The Court noted that this version of the habitual offender statute contemplated that a defendant shall have been convicted in a judicial proceeding of a crime in this state or elsewhere of the offenses listed in the statute.  “All the essential facts of his guilt must be res judicata.   In applying [the former statute] the courts of this state may take cognizance only of what has been lawfully adjudicated.   Any other rule would lead to absurd consequences.   If our trial courts could take evidence to prove, and upon that evidence adjudicate for themselves, that a defendant had been convicted in another state of grand theft as defined in our code despite the fact that he had been there charged, tried, and convicted under a statute defining another offense (here, an offense the only adjudicated elements of which amount to petty theft in California), then our courts could also take evidence and decide that the defendant had been convicted in the other state of robbery or burglary or bribery, or any other offense enumerated in [the former section], even though he had never been charged with, placed upon trial for, or adjudged guilty of, any of those offenses in such other state.”   (McVickers, supra, 29 Cal.2d at p. 276, 176 P.2d 40.)   The construction of the statute urged by the Attorney General is wholly inconsistent with the McVickers limitation.

Properly construed, Guerrero simply authorizes an examination of the entire record when the prior offense is statutorily defined to include several variations, one of which includes a serious felony.   Of course, the entry into a residence with intent to commit theft or any felony constitutes the crime of burglary in California but then so does a similar entry into a mine.   (Pen.Code, § 459.)   Thus, for purposes of determining whether defendant's prior burglary conviction involved a residence (and hence a serious felony) or a mine shaft, the court was entitled to look to the entire record of that conviction to determine which variant was actually adjudicated.   That was the case in McVickers as well.  “ ‘Section 218 of the Criminal Code (18 U.S.C.A. § 347) enumerates many prohibited acts some of which, if comparable to any state offense, would amount to no more than misdemeanors but others of which are comparable to the state crime of forgery․  From ․ documentary evidence (certified copies of the indictment and judgment in the federal matter) [, however,] it appears that petitioner was convicted of nine counts of forging postal money orders․  We entertain no doubt that the forgery of a United States money order is an offense within section 470 and, therefore, would be punishable by imprisonment in the state prison․’ ”  (Guerrero, supra, 44 Cal.3d at p. 352, 243 Cal.Rptr. 688, 748 P.2d 1150, quoting from McVickers, supra, 29 Cal.2d at pp. 276–281, 176 P.2d 40.)

Considered in this light, Guerrero is but another addition to the list of collateral estoppel authorities permitting a court to review the entire record of the prior proceedings to determine if crucial issues had actually been adjudicated.  “The entire proceedings in the first case,” Witkin notes, “including evidence extrinsic to the judgment roll, may be admitted for the purpose of determining whether the issue was raised by pleadings or otherwise, and was decided by the judgment.”  (7 Witkin, Cal. Procedure (3d ed. 1985) Judgment, § 255, p. 694.)   But this analysis applies only where the foreign crime is defined alternatively and at least one of the alternate definitions contains all the elements of a California serious felony.   On the other hand, if the elements of the foreign and domestic crimes are not the same, the defect cannot be cured by an examination of the record of the first case, no matter how comprehensive.   In such a case the issue would not be raised by the pleadings or otherwise and would simply never be adjudicated.   In part this was the conclusion the Court of Appeal reached in People v. Reynolds (1989) 211 Cal.App.3d 382, 259 Cal.Rptr. 352.   There the issue was whether Oregon convictions for burglary in the first degree and for robbery in the third degree constituted serious felonies under Penal Code section 667.   Because the trial court felt constrained under People v. Alfaro (1986) 42 Cal.3d 627, 230 Cal.Rptr. 129, 724 P.2d 1154, a case expressly disapproved by Guerrero, to limit its consideration to the record of conviction, the reviewing court remanded the case to the trial court “to permit the prosecution to produce the entire records of the Oregon convictions to the trier of fact on the issue of the sufficiency of the evidence to support the serious felony enhancements based upon the two prior Oregon convictions.”  (Id. 211 Cal.App.3d at p. 390, 259 Cal.Rptr. 352.)   In our view, that remand was correct for the burglary offense but erroneous for the robbery count.   As the court noted, in Oregon a person could be convicted of first degree burglary if he enters or remains in a dwelling with intent to commit any crime therein, be it felony or misdemeanor.   On the contrary, in California the person must have the intent to commit grand or petit larceny or any felony.  “Because an Oregon conviction for first degree burglary could be based on an act not constituting burglary in California, it would not necessarily support the section 667 enhancement.”  (Id. at p. 389, fn. 1, 259 Cal.Rptr. 352.)   Stated another way, the Oregon burglary statute defines the crime in various ways, one of which includes all of the elements of a serious felony and others which do not.   In such a case, the trial court is entitled under Guerrero to determine which of those alternate versions was actually adjudicated in the prior case.

But the same analysis cannot be applied to the robbery count.   As the Reynolds court noted, “Oregon law does not require an actual taking of property but only the intent to commit theft, while robbery under Penal Code section 211 requires that property of some value be taken from a person or from his immediate possession.”  (211 Cal.App.3d 382 at p. 389, fn. 1, 259 Cal.Rptr. 352, citations omitted.)   There is no version of the crime of robbery in the third degree in Oregon which requires asportation.   Consequently, there is no version of that crime which contains all of the elements of the California serious felony of robbery.   Since the Oregon crime of robbery does not contain all the elements of a serious felony, and because the question of asportation was never adjudicated, it does not qualify as an enhancement and should not have been included in the remand for a factual hearing.

As we read the statute, the phrase “the elements of any serious felony” refers to the defining parts of the crime and not the manner of its commission.   If the foreign crime does not include all the elements of its California counterpart, then it does not qualify as a serious felony no matter how the crime was committed.  (See People v. Ellis (1987) 195 Cal.App.3d 334, 342, 240 Cal.Rptr. 708.)   In the final analysis, it is the foreign “offense” which must be compared under statute, not defendant's criminal conduct.   After all, an accused is convicted of a crime, not conduct.   And under the statute a defendant must have been “convicted” of an offense with all of the elements of a serious felony.   Since defendant was not, the enhancement must fall.⁶

II–III ***

DISPOSITION

The judgment is reversed insofar as it imposes a five-year enhancement pursuant to section 667, subdivision (a).   In all other respects, the judgment is affirmed.   The trial court is directed to amend the abstract to conform to the judgment as modified and to forward a certified copy of it to the Department of Corrections.

I concur in the judgment, but write separately on the issue of the sentence enhancement by virtue of the Texas prior conviction.   In summary, I feel that the case of People v. Crowson (1983) 33 Cal.3d 623, 190 Cal.Rptr. 165, 660 P.2d 389, relied on by the majority, is not binding precedent in this case, and further, that there can be instances where the elements of a foreign serious felony conviction may not facially coincide with the correlative California crime but still may be considered as a foreign serious felony conviction pursuant to Penal Code section 667 and 1192.7.¹

The issue here concerning the Texas prior conviction involves the application of section 667, and through it, section 1192.7.  Section 667 provides, inter alia, “(a) ․ any person convicted of ․ any offense committed in another jurisdiction which includes all the elements of any serious felony, shall receive, ․ a five-year enhancement․  [¶] (d) As used in this section ‘serious felony’ means a serious felony listed in subdivision (c) of Section 1192.7.”  Section 1192.7, subdivision (c) provides in part:  “As used in this section ‘serious felony’ means any of the following:  ․ (19) robbery or bank robbery;  ․” At issue is whether or not the Texas conviction of aggravated robbery “includes all of the elements of any serious felony․”  (Section 667.)

Before trial defendant moved to strike the allegation of the Texas prior on the ground that all of the elements of the crime of robbery in California were not present in the statutory definition of Texas aggravated robbery, pointing out that in Texas robbery did not include as a necessary element an asportation, a fact conceded by the prosecution.

However, the trial court, applying the holding of People v. Guerrero (1988) 44 Cal.3d 343, 243 Cal.Rptr. 688, 748 P.2d 1150, found that an asportation had in fact occurred and concluded that the Texas offense did in fact include all of the elements of a serious felony, to wit, robbery.   This resulted in a five-year enhancement to defendant's sentence.

The trial court found that the Texas conviction resulted from a plea of guilty and that evidence of the crime consisted of six documents admitted by stipulation of the parties after the prior waivers.   Based on these documents and the plea, the Texas court found defendant guilty of aggravated robbery.   One of the documents admitted into evidence was a statement taken by a Texas detective from one Paul Rios, the victim of the robbery, who stated the defendant and two others took his car keys and drove off in his car.   The trial court found this supplied the requisite asportation.   The question is whether an element of the serious felony required in California but not necessary for a Texas conviction can be supplied by the facts of the case other than those necessarily adjudicated.²  I conclude that in this case the answer must be no.

In determining the propriety of going behind the statute to the record to find the missing element, I first consider People v. Crowson (1983) 33 Cal.3d 623, 190 Cal.Rptr. 165, 660 P.2d 389.   The defendant in Crowson had previously pleaded guilty to a federal drug conspiracy charge and had received a one-year enhancement pursuant to section 667.5, subdivision (b).³  This enhancement was challenged on the basis that commission of an overt act required for a California conspiracy conviction was not required under federal law, hence, like here, there was a missing element in the prior conviction.   The People contended that even though federal law required no overt act, the indictment in question contained two overt act allegations which the defendant admitted in his plea of guilty.   The court stated, “Thus, we are faced directly with the question whether the difference in the basic elements of the foreign and California crimes precludes enhancement under section 667.5, subdivision (f).”  (Id. at p. 632, 190 Cal.Rptr. 165, 660 P.2d 389.)   The court held, “In light of the language of section 667.5, subdivision (f) and past authorities interpreting a related statute, we conclude that enhancement is only permissible when the elements of the foreign crime, as defined by that jurisdiction's statutory or common law, include all of the elements of the California felony.”  (Ibid.;  fn. omitted.)   Thus, there were two routes of reasoning taken by the Crowson court, one based on a reading of the language of section 667.5, and one based on prior case law.   An opinion of this court, following Crowson but preceding Guerrero, stated that the holding of Crowson applies to section 667.  (People v. Ellis (1987) 195 Cal.App.3d 334, 341, 240 Cal.Rptr. 708.)

To evaluate the efficacy of Crowson today, as applied to section 667, the basis of each prong of the decision must be examined and then reevaluated with the teaching of Guerrero.

The Crowson court first looked at the language of the statute, section 667.5.  “[¶] We begin with the terms of the statute.   Section 667.5, subdivision (f), enacted in 1976 as part of the Determinate Sentencing Act, provides in full:  ‘A prior conviction of a felony shall include a conviction in another jurisdiction for an offense which if committed in California is punishable by imprisonment in state prison provided the defendant served one year or more in prison for such offense in the other jurisdiction.   A prior conviction of a particular felony shall include a conviction in another jurisdiction for an offense which includes all of the elements of the particular felony as defined under California law provided the defendant served one year or more in prison for such offense in the other jurisdiction.’   ( [Emphasis] added.)

“As the emphasized language indicates, the statute authorizes enhancement for a foreign conviction only when the conviction is ‘for an offense which includes all of the elements' of the California felony.   As used in other portions of section 667.5, the term ‘offense’ quite clearly refers to a specific crime as defined by law, and not simply to the actual conduct of the defendant.[ ]  It is, of course generally ‘presumed, in the absence of anything in the statute to the contrary, that a repeated phrase or word in a statute is used in the same sense throughout.  [Citations.]’  (People v. Hernandez (1981) 30 Cal.3d 462, 468 [179 Cal.Rptr. 239, 637 P.2d 706].)   Although this ‘presumption’ of consistent usage will give way in the face of an apparent contrary legislative intent (see ibid.), we can find nothing to suggest that the Legislature did not intend the relevant comparison to be between the elements of the foreign and California ‘offenses,’ as defined by the applicable statutory or common law.”  (Crowson, supra, 33 Cal.3d at p. 633, 190 Cal.Rptr. 165, 660 P.2d 389.)

A review of section 667 discloses no similar repetitious use of the word “offense” to support an analysis like that in Crowson.   The word “offense” relating to a prior conviction appears but once in section 667.   Moreover, the broad scope of activity encompassed in the serious felonies listed in section 1192.7 indicates no intention to interpret narrowly the word “offense” in section 667.   To the contrary, the provision of California Constitution, article 1, section 28, subdivision (f), enacted into law contemporaneously with sections 667 and 1192.7, clearly reflects a policy of expanded use of prior convictions in stating “[a]ny prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of ․ enhancement of sentence in any criminal proceeding.”  (Emphasis added.)   The intent of the Legislature expressed by the adoption of section 667.5 in 1976 would appear to have little if any commonality with the intent of the electorate in the passage of section 667 in 1982.

The Crowson court reinforced its interpretation of section 667.5, subdivision (f) by citing In re Finley (1968) 68 Cal.2d 389, 66 Cal.Rptr. 733, 438 P.2d 381.  Finley involved an attack by petition for writ of habeas corpus upon a finding of habitual criminality based in part on a prior conviction for burglary in the State of Washington.   The petitioner claimed the elements of the Washington burglary did not meet the minimum elements of a California burglary, hence it could not be recognized pursuant to section 668.⁴

Crowson quotes from Finley and states as follows:  “[¶] In In re Finley ․ Chief Justice Traynor, writing for a unanimous court, reviewed the general principles applicable in determining whether a foreign conviction could be used pursuant to section 668 as a basis for increased punishment under the then-existing habitual criminal law.  (Former § 664.)   Chief Justice Traynor explained that such a determination ‘does not [involve] the opening or reopening of questions calling for resolution on the basis of the testimony of witnesses who may have died or disappeared or where memories have faded․  The fact that an accused suffered a foreign conviction of a crime is made officially of record at the time and place of such conviction, and the law of the jurisdiction where he suffered it is judicially noticed.  [Citations.]  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 on habeas corpus 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.]’  ( [Emphasis] added.)  (68 Cal.2d at pp. 392–393 [66 Cal.Rptr. 733, 438 P.2d 381].   See, e.g., In re McVickers [1945] 29 Cal.2d 264, 276 [176 P.2d 40].)   The Legislature evidently intended to endorse this approach by explicitly incorporating an elements-of-the-offense standard in section 667.5, subdivision (f).”  (Crowson, supra, 33 Cal.3d at pp. 633–634, 190 Cal.Rptr. 165, 660 P.2d 389.)

This analysis was rejected by the Supreme Court in its most recent pronouncement on the subject of the propriety of using more than the minimum statutory elements to determine what convictions can be used to enhance sentences.   In People v. Guerrero, supra, 44 Cal.3d 343, 243 Cal.Rptr. 688, 748 P.2d 1150, the court reviewed its holding in People v. Alfaro (1986) 42 Cal.3d 627, 230 Cal.Rptr. 129, 724 P.2d 1154.  Alfaro held that “proof that a prior conviction was a ‘serious felony’ for the purpose of the five-year enhancement under Penal Code sections 667 and 1192.7, subdivision (c), was limited to matters necessarily established by the prior judgment of conviction.”  (Guerrero, supra, 44 Cal.3d at p. 345, 243 Cal.Rptr. 688, 748 P.2d 1150.)

In its analysis of Alfaro, the court in Guerrero said, “In People v. Alfaro, supra, 42 Cal.3d 627, 632–635 [230 Cal.Rptr. 129, 724 P.2d 1154], a majority of the court held that proof that a prior conviction was a ‘serious felony’ for the purpose of the five-year enhancement under sections 667 and 1192.7(c) was limited to matters necessarily established by the prior judgment of conviction.   In coming to this conclusion, the majority relied on dictum in People v. Jackson [1985] 37 Cal.3d 826, 833–834 [210 Cal.Rptr. 623, 694 P.2d 736].   In framing that dictum, the Jackson court in turn relied on People v. Crowson [․]—which discussed sentence enhancement for a prior foreign conviction under Penal Code section 667.5, subdivision (f), and held that ‘enhancement is only permissible when the elements of the foreign crime, as defined by that jurisdiction's statutory or common law, include all of the elements of the California felony’ (Crowson, supra, [33 Cal.3d] at p. 632 [190 Cal.Rptr. 165, 660 P.2d 389].)   In arriving at that conclusion, the Crowson court in turn relied on a line of cases culminating in In re Finley [supra], 68 Cal.2d 389 [66 Cal.Rptr. 733, 438 P.2d 381] [․], which construed Penal Code section 668, a parallel habitual criminal provision relating to prior foreign convictions.   Thus, it is on this line of cases that the holding of the Alfaro majority ultimately rests.”   (Guerrero, supra, 44 Cal.3d at p. 348, 243 Cal.Rptr. 688, 748 P.2d 1150.)

After an in-depth analysis of the Finley case and its predecessors the court concluded, “․ the Finley court plainly recognized and applied the rule laid down in McVickers, [supra, 29 Cal.2d 264, 176 P.2d 40] and followed in Seeley [ (1946) 29 Cal.2d 294, 176 P.2d 24]:  i.e., the court may look to the entire record of the conviction to determine the substance of the prior foreign conviction;  but 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 the foreign law” (Guerrero, supra, 44 Cal.3d at pp. 354–355, 243 Cal.Rptr. 688, 748 P.2d 1150), and thereupon overruled Alfaro.  (Ibid.)

The Supreme Court has not overruled Crowson and that case is obviously binding on this court.  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937.)   However, its vitality has clearly been sorely sapped as a precedent concerning the interpretation of section 667.   The analysis of Crowson involving the wording of section 667.5 fits neither section 667 nor the apparent design of California Constitution, article I, section 28, subdivision (f).   The case law cited as bolstering its interpretation of section 667.5 has been shown in Guerrero to lead to an opposite conclusion.   Accordingly, I do not see Crowson as authoritative on the issue before us.   To be sure, this court has previously indicated that the holding of Crowson applies to issues involving section 667.  (People v. Ellis, supra, 195 Cal.App.3d at p. 342, 240 Cal.Rptr. 708.)   However, our decision in Ellis predated the Guerrero decision and we did not have the benefit of its analysis.

Though the holding of Guerrero involved the use of the entire record of prior California convictions, I find no logical reason why the rationale of that case does not apply equally to proof of prior foreign convictions pursuant to section 667.   The court in Guerrero set forth its holding in broader terms, stating “We conclude that in determining the truth of a prior conviction allegation, the trier of fact may look to the entire record of the conviction.”  (Guerrero, supra, 44 Cal.3d at p. 345, 243 Cal.Rptr. 688, 748 P.2d 1150.)   The court further pointed out, as discussed above in refuting Alfaro, the Finley line of cases specifically allowed reference to the entire file of foreign convictions to determine adjudicated elements of the conviction.

The court notes the case of People v. Jackson, supra, 37 Cal.3d 826, 210 Cal.Rptr. 623, 694 P.2d 736 recognized that the people in adopting section 667 intended to deter criminal conduct other than specifically enumerated crimes.  (Guerrero, supra, 44 Cal.3d at p. 348, 243 Cal.Rptr. 688, 748 P.2d 1150.)   For the above reasons, I conclude that an offense committed in another jurisdiction may be found to have included all the elements of a serious felony defined in section 1192.7 if all the elements in fact existed even if not included in the definition of the crime in the foreign jurisdiction.   The issue remains, however, of how the elements of the prior convictions may be proved.   The Guerrero case held that in determining the truth of a prior conviction allegation, the trier of fact may look to the entire record of the conviction.   Though this language appears to be quite broad, it must be read in connection with its ancestry, the McVickers–Seeley–Finley line of cases.   In each case the problem facing the court was a determination of what the defendant was actually convicted in the foreign jurisdiction.   It was a search for actual adjudicated facts, or, in their absence, a recognition that the conviction was for the least offense punishable under the foreign statute.   No interpretation of the holding of Guerrero should properly extend beyond the cases justifying that holding.   Indeed, the language of Guerrero indicates the recognition of only adjudicated facts is proper in determining the enhancement value of a foreign conviction, stating “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.”   (Id. at p. 355, 243 Cal.Rptr. 688, 748 P.2d 1150.)   Further, the court in Guerrero quotes with apparent approval from In re McVickers, supra, 29 Cal.2d 264, 176 P.2d 40 as follows:

“Sections 644 and 668 of the Penal Code contemplate that a defendant shall have been convicted in a judicial proceeding of a crime enumerated in section 644.   All the essential facts of his guilt must be res judicata.   In applying section 644 the courts of this state may take cognizance only of what has been lawfully adjudicated.   Any other rule would lead to absurd consequences.   If our trial courts could take evidence to prove, and upon that evidence adjudicate for themselves, that a defendant had been convicted in another state of grand theft as defined in our code despite the fact that another offense (here, an offense the only adjudicated elements of which would amount to petty theft in California), then our courts could also take evidence and decide that the defendant had been convicted in the other state of the robbery or burglary or bribery, or any other offense enumerated in section 644, even though he had never been charged with, placed upon trial for, or adjudged guilty of, any of those offenses in such other state.”   (Guerrero, supra, 44 Cal.3d at p. 349, 243 Cal.Rptr. 688, 748 P.2d 1150, quoting McVickers, supra, 29 Cal.2d at p. 276, 176 P.2d 40.)

It is obvious that in the great majority of cases the adjudicated facts will coincide with the elements of the offense of the foreign prior conviction, but not always or necessarily.   To illustrate the difference between the issue of asportation in this case and an adjudicated fact not a necessary element of a foreign offense, assume a foreign grand theft conviction under a statute that defines the crime as the taking of personal property of value exceeding $200.   Further, assume a conviction under that statute with only such an allegation which actually involved the taking solely of a firearm.   Under the California grand theft statute, the taking of personal property of value exceeding $400 or the taking of a firearm of any value is grand theft.⁵  That a firearm was taken would be an adjudicated fact since it was proved as an element of the crime.   Such a conviction would have all the elements of grand theft if committed in California, and would be a prior conviction of a serious felony under sections 667 and 1192.7.⁶  This is to be contrasted with the element of asportation in the Texas prior here, an element extraneous to the crime.

The Guerrero court declined to attempt to list what items in the record of conviction would be admissible to prove the prior.  (Id. at p. 356, fn. 1, 243 Cal.Rptr. 688, 748 P.2d 1150.)   Nor will such an attempt be made here.   However, it should be noted that regardless of the source of the facts of the prior conviction, no fact should be accepted as having been adjudicated unless it can be found that the fact was at issue, and was proved true beyond a reasonable doubt.

FOOTNOTES

1.   Texas Penal Code section 31.03 defines theft in pertinent part:  “(a) A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property.  [¶] (b) Appropriation of property is unlawful if:  [¶] (1) it is without the owner's effective consent;  [¶] (2) the property is stolen and the actor appropriates the property knowing it was stolen by another;  or [¶] (3) property in the custody of any law enforcement agency was explicitly represented by any law enforcement agent to the actor as being stolen and the actor appropriates the property believing it was stolen by another.”

2.   A crime in California is defined as “an act committed or omitted in violation of a law forbidding or commanding it, and to which is annexed, upon conviction, ․ [specified punishments].”  (§ 15.)   In addition to that act, in order to constitute a crime “there must exist a union, or joint operation of act and intent, or criminal negligence.”  (§ 20.)   The elements of a crime, therefore, consist of those acts forbidden or commanded by the defining statute coupled with the required intent or mental state.  “Every crime consists of a group of elements laid down by the statute or law defining the offense and every one of these elements must exist or the statute is not violated.   This group of essential elements is known as the ‘corpus delicti,’ the body or the elements of the crime․  Generally, the definition of a crime very clearly lists the elements of the corpus delicti of that crime․”  (Fricke, Cal.Criminal Law (Alarcon 10th rev. ed. (1970)) p. 26;  see generally 1 Witkin & Epstein, Cal.Criminal Law (2d ed. 1988) Elements of Crime, §§ 97–142, pp. 115–160.)

3.   In the language of the statute, “[t]hat only is deemed to have been adjudged in a former judgment which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto.”  (Code Civ.Proc., § 1911.)   As Witkin notes, “[t]his cryptic observation is not much help, ․” (7 Witkin, Cal.Procedure (3d ed. 1985) Judgment, § 254, p. 693.)

4.   At the relevant time, section 644, subdivision (a), now repealed, provided:  “Every person convicted in this State of the crime of robbery [or other named felonies] ․ who shall have been previously twice convicted upon charges separately brought and tried, and who shall have served separate terms therefor in any State prison ․ either in this State or elsewhere, of the crime of robbery, burglary, [or other named felonies] ․ shall be adjudged a [sic ] habitual criminal and shall be punished by imprisonment in the state prison for life.”  (Stats.1945, ch. 934, § 1, p. 1747.)   Section 668 then read, as it does now, as follows:  “Every person who has been convicted in any other state, government, or country, of an offense which, if committed within this state, would be punishable by the laws of this state by imprisonment in the state prison, is punishable for any subsequent crime committed within this state in the manner prescribed in sections 644, 666 and 667, and to the same extent as if such prior conviction had taken place in a court of this state.  (Stats.1927, ch. 632, p. 1065.)”

5.   With respect to the Utah grand theft conviction, the court noted that the California grand theft statute requires the value of the property taken to be of a value exceeding $200 while the Utah statute only required a value of $50.  “The pleading and proof or admission of a conviction for grand larceny in Utah, without more, establishes that petitioner was convicted of the theft of property of a value of $50.01, a crime which is not enumerated in [the former habitual criminal statute].”  (McVickers, supra, 29 Cal.2d at p. 278, 176 P.2d 40.)   Under these circumstances it must be assumed “that defendant suffered the prior conviction for the least offense punishable under the Utah statute, which is but a misdemeanor under California law.”  (Id. at p. 279, 176 P.2d 40.)   For this reason the court concluded that petitioner “is an habitual criminal who has been previously twice, but not three times, convicted of felonies enumerated in” the former statute.  (Id. at p. 281, 176 P.2d 40.)

6.   The Attorney General also argues that even if the elements of a California robbery are not adequately established, the prior Texas offense qualifies as serious felony under section 1192.7 as an attempted robbery (§ 1192.7, subd. (c)(27)), a felony where defendant used a firearm (§ 1192.7, subd. (c)(8)), an assault with intent to commit robbery (§ 1192.7, subd. (c)(10)), or a felony where defendant used a deadly or dangerous weapon (§ 1192.7, subd. (c)(23)).   The attempted robbery and assault with intent to commit robbery cannot be said to have occurred since, as discussed above, the elements of a California robbery which would have to have been attempted or intended are not present in the Texas offense as defined by law.   The other two suggested possibilities, a felony where defendant used a firearm or a felony where defendant used a deadly or dangerous weapon also fail.   The underlying felony in Texas does not contain the elements of its California counterpart.   The Attorney General has thus not demonstrated the defendant committed any felony in Texas equivalent to a California serious felony.   Moreover, the information alleged only the Texas aggravated robbery offense as the serious felony.  (§ 1170.1, subd. (f).)  The People cannot now be permitted at this late stage of the proceedings to argue that the prior offense falls within another, but uncharged, provision of the enhancement statute.

FOOTNOTE.   See footnote **, ante.

1.   Following statutory references are to the Penal Code.

2.   Section 1192.7, subdivision (c) contains a lengthy list of “serious felonies.”   Among them are an attempt to commit a serious felony (§ 1192.7, (subd. (c)(27));  a felony where defendant used a firearm (§ 1192.7, subd. (c)(8));  an assault with intent to commit robbery (§ 1192.7, subd. (c)(10));  or a felony where the defendant used a deadly or dangerous weapon (§ 1192.7, subd. (c)(23)).   I will not discuss the question as to whether the Texas prior as alleged falls within any or all of these other defined “serious felonies,” but rather remain with the reasons given by the trial court in resolution of the issue, i.e., whether or not a robbery was alleged and proved in compliance with sections 667 and 1192.7, subdivision (c)(19) (robbery).

3.   Section 667.5 provides in part as follows:“Enhancement of prison terms for new offenses because of prior prison terms shall be imposed as follows:“․“(b) Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony;  provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction.“․“(f) A prior conviction of a felony shall include a conviction in another jurisdiction for an offense which if committed in California is punishable by imprisonment in state prison if the defendant served one year or more in prison for the offense in the other jurisdiction.   A prior conviction of a particular felony shall include a conviction in another jurisdiction for an offense which includes all of the elements of the particular felony as defined under California law if the defendant served one year or more in prison for the offense in the other jurisdiction.”

4.   In 1968, when Finley was decided, section 668 provided:“Every person who has been convicted in any other state, government, or country, of an offense for which, if committed within this State, such person could have been punished under the laws of this State by imprisonment in a state prison, is punishable for any subsequent crime committed within this State in the manner prescribed in Section 644, 666, 667, and to the same extent as if such prior conviction had taken place in a court of this State.”  (Stats.1951, ch. 671, p. 1878, § 1.)In 1976, nonsubstantive amendments were made to section 668.

5.   Section 487 provides in pertinent part:  “Grand theft is theft committed in any of the following cases:  [¶] 1. When the money, labor or real or personal property taken is of a value exceeding four hundred dollars ($400);  ․ [¶] 3. When the property taken is a firearm, ․”

6.   Section 1192.7, subdivision (c)(26) includes in its listing of serious felonies grand theft involving a firearm.

SPARKS, Acting Presiding Justice.

SCOTLAND, J., concurs.