PEOPLE v. HAKKARAINEN (1985)

Dana Hakkarainen appeals the judgment entered following his plea of guilty to burglary and a finding after court trial that he had previously been convicted of a serious felony (Pen.Code,1 §§ 211, 459, 667, subd. (a), 1192.7, subd. (c)(19)).   He was sentenced to the middle term of four years for the burglary and five years for the enhancement for a total term of nine years.   He contends:  (1) he pleaded guilty reasonably believing that the judge indicated concurrence with the pre-plea probation report recommending six years, and should therefore be allowed to withdraw his plea;  (2) the sentencing judge failed to find and fix the degree of burglary;  section 1192 mandates that the burglary be deemed second degree;  (3) sentence enhancements are limited to double-the-base-term;  (4) the court erred in believing it could not strike or stay part of a Proposition 8 enhancement.

I. The “Indicated Sentence”

 The preliminary hearing transcript reveals that appellant entered a Santa Barbara residence during the early morning hours of August 15, 1983, and committed theft.   Following a discussion of a pre-plea probation report which recommended that the court impose the upper term of six years and strike the two “serious felony” enhancements with which appellant was charged, appellant pled guilty to burglary, indicating, inter alia, as follows:

“THE COURT:  And you know that the penalty for this offense is two, four or six years?

“[APPELLANT]:  Yes.

“THE COURT:  Made no promises to you as to what I'm going to do with the case?

“[APPELLANT]:  Correct.

“THE COURT:  No assurances, nothing of the sort?

“[APPELLANT]:  Correct.

“․

“THE COURT:  Anyone threatening you to get you to plead guilty?

“[APPELLANT]:  No.

“THE COURT:  And you know there are no promises?

“[APPELLANT]:  Yes.

“THE COURT:  And you could conceivably, as a result of this—the entry of this plea, do up to 16 years in state prison?

“[APPELLANT]:  Yes.

“THE COURT:  Because this would be the six year element of that;  do you understand?

“[APPELLANT]:  Right.”

A court trial was subsequently held on the two “prior serious felony” allegations, one of which was found true.

Appellant's first contention is without merit;  no “promises” were made at the time of appellant's plea.   The court's tentative indication that this was a “six or seven year case” was based solely on the pre-plea probation report.   Additional information on appellant's prior record was presented at the time of sentencing, which caused the court to reevaluate its position.   The court indicated that if the additional information resulted in a sentence greater than that originally discussed, appellant could seek to withdraw his plea.   He did not do so, and he is therefore precluded from challenging the plea for the first time on appeal.  (See People v. Marsh (1984) 36 Cal.3d 134, 140, 202 Cal.Rptr. 92, 679 P.2d 1033;  cf. People v. Johnson (1974) 10 Cal.3d 868, 872, 112 Cal.Rptr. 556, 519 P.2d 604.)

II. The Degree of the Burglary

Section 1192 provides, in pertinent part, that “[u]pon a plea of guilty ․ of a crime ․ distinguished or divided into degrees, the court must, before passing sentence, determine the degree.   Upon the failure of the court to so determine, the degree of the crime ․ of which the defendant is guilty, shall be deemed to be of the lesser degree.”

Appellant seeks to take advantage of this provision and thereby reduce his sentence by reducing the degree of his crime.   Respondent argues that even though the court did not “mouth the magic words,” the record demonstrates an implied finding of first degree.

 We cannot agree with respondent.   It is well established that section 1192 and its corollary section 1157 ² require specific findings of degree;  a court may not imply the degree of the crime from some other factual finding.  (People v. Flores (1974) 12 Cal.3d 85, 93–95, 115 Cal.Rptr. 225, 524 P.2d 353;  People v. Williams (1984) 157 Cal.App.3d 145, 153–155, 203 Cal.Rptr. 562;  regarding section 1157, see People v. Beamon (1973) 8 Cal.3d 625, 629, fn. 2, 105 Cal.Rptr. 681, 504 P.2d 905;  People v. Johns (1983) 145 Cal.App.3d 281, 294–295, 193 Cal.Rptr. 182.)

 Neither, however, can we agree with appellant.   Section 460, subparagraph 1 provides, in pertinent part, that “[e]very burglary of an inhabited dwelling house ․ is burglary of the first degree.”   This species of crime has gained notoriety since the passage of Proposition 8 as “residential burglary,” and that is precisely the crime to which appellant plead guilty:

“THE COURT:  You are charged in Count 1 with residential burglary, in violation of section 459 of the Penal Code of the State of California, in that you, on or about the 15th day of August, 1983, at and in the County of Santa Barbara, State of California, did willfully and unlawfully, feloniously enter the residence of ․ with intent to commit theft.   To that charge, what—do you wish to change your plea at this time?

“[APPELLANT]:  To guilty.

“THE COURT:  All right.   What plea do you wish to enter?

“[APPELLANT]:  Guilty.”

Therefore, because appellant pled guilty to first degree burglary, the court was not required to make a specific finding of degree pursuant to section 1192.

III. The Double-the-Base-Term Limitation

Appellant's nine year sentence (four years for the underlying burglary plus five years for the prior serious felony enhancement) is not precluded by the “double the base term” limitation of section 1170.1.   Subdivision (g) of section 1170.1 provides, generally, that the “term of imprisonment shall not exceed twice the number of years imposed by the trial court as the base term ․”  Section 667 (the section responsible for appellant's five-year enhancement) creates an additional exception to this “double-the-base-term” limitation.³

Section 667 was enacted as part of the initiative measure known as Proposition 8 which became effective on June 9, 1982.   This section mandates a five year consecutive enhancement for prior “serious felonies” ⁴ :  “Any person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five year enhancement for each such prior conviction on charges brought and tried separately.   The terms of the present offense and each enhancement shall run consecutively.”  (§ 667, subd. (a).)

Subdivision (b) of section 667 continues:  “This section shall not be applied when the punishment imposed under other provisions of law would result in a longer term of imprisonment.   There is no requirement of prior incarceration or commitment for this section to apply.”

Lest there be any doubt that the intent of the initiative was to increase, as much as possible, sentences for “serious felony” repeat offenders, the proposition also included an addition to the California Constitution:  “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․”  (Art. I, § 28, subd. (f), emphasis added.)

 In our view these provisions of Proposition 8 unambiguously modify the provisions of subdivision (g) of section 1170.1.   That section should now be read with an additional constitutionally mandated exception.   If this exception had been written into the statute, the statute would read as follows:  “The term of imprisonment shall not exceed twice the number of years imposed by the trial court as the base term pursuant to subdivision (b) of section 1170 unless the defendant stands convicted of a ‘violent felony’ as defined in subdivision (c) of section 667.5, or a consecutive sentence is being imposed pursuant to subdivision (c) of this section, or an enhancement is imposed pursuant to section 12022, 12022.5, 12022.6 or 12022.7 [or an enhancement is imposed pursuant to sections 667 and 1192.7 for a prior serious felony conviction,] or the defendant stands convicted of felony escape from an institution in which he is lawfully confined.”  (Bracketed underlined portion read into quoted statutory language.)

This interpretation does not mean that the initiative repealed section 1170.1, subdivision (g) by implication.   It means merely that the initiative created an additional exception to section 1170, subdivision (g).⁵

 We are also unpersuaded by the argument that the court should “use” section 667 to impose five-year sentences for enhancements but, at the same time, stay execution of those enhancements to the extent that they cause the total sentence to exceed the double-the-base-term limitation of section 1170.1, subdivision (g).   That is not consistent with the analysis of the proposition which was presented to the voters in the ballot pamphlet prepared for the June 1982 election.  “․ This 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., Proposed Initiative Stats. & Amend. to Cal. Const. with Arguments to Voters, Primary Elec. (June 8, 1982), Analysis by Legislative Analyst, pp. 54–55, original italics.)

 Our conclusion that section 667 created an additional exception to the “double-the-base-term” limitation of section 1170.1, subdivision (g) is therefore consistent with legislative purpose and intent.  (People v. Smith, supra, 34 Cal.3d 251, 258, 193 Cal.Rptr. 692, 667 P.2d 149.)   Accordingly, appellant's nine year sentence does not violate section 1170.1, subdivision (g).

IV. Striking or Staying Part of a Section 667 Enhancement

At the time for sentencing after the finding of appellant's prior conviction, there was some discussion regarding whether the court could strike or stay some portion of the five year enhancement provided by section 667.⁶  The court indicated that it “had no discretion” to do so.   Appellant seizes upon this comment to urge that we strike a portion of the enhancement because of the court's error.   His contention has no merit.

 In the first place, even if the court's assumption was erroneous, the most we could do would be to remand for resentencing.  (People v. Fields (1984) 159 Cal.App.3d 555, 570–571, 205 Cal.Rptr. 888.)   However, remand is unnecessary here because we conclude that the trial court was correct:  it had no discretion to strike or stay a portion of the enhancement.

Appellant relies on People v. Lopez (1983) 147 Cal.App.3d 162, 195 Cal.Rptr. 27, where the court held that even in the face of the mandatory language of section 667,⁷ trial courts retain their discretion to strike or, more properly, to stay the imposition of sentences for enhancements.   We disagree with Lopez ⁸ ;  however, it is not upon that basis that we reject appellant's argument.

 “[S]ubject to the constitutional prohibition against cruel and unusual punishment,⁹ the power to define crimes and fix penalties is vested ․ in the legislative branch․  The function of the courts is to determine the guilt or innocence of an accused.   What disposition may thereafter be made by way of penalty is for the legislature to determine.”   (People v. Tanner (1979) 24 Cal.3d 514, 519, fn. 3, 156 Cal.Rptr. 450, 596 P.2d 328.)   Penalty legislation passed by initiative should be treated with the same dignity as enactments of the legislature.  (People v. Williams (1981) 30 Cal.3d 470, 480–485 and fn. 7, p. 484, 179 Cal.Rptr. 443, 637 P.2d 1029.)

 For example, the legislature has fixed the penalty for first degree burglary at two, four or six years in the state prison (§ 461).   A sentencing court must select one of those terms;  it does not have the discretion to impose a five-year term if it feels that four years are too few and six too many.   Similarly, the initiative measure fixed the enhancement for a prior serious felony at five years (§ 667).   Vesting trial courts with the discretion to strike or stay a portion of the term for that enhancement would, in actuality, grant each individual trial court the power to define the term for that enhancement.   That would entirely undermine the purpose of determinate sentencing:  to assure “that prison terms are proportionate to the seriousness of the offense and uniform among the persons committing the same offense under similar circumstances.”  (People v. McCart (1982) 32 Cal.3d 338, 340, 185 Cal.Rptr. 284, 649 P.2d 926 (Emphasis added.);   §  1170, subd. (a)(1).)   Therefore, we hold that a trial court has no discretion to strike or stay a portion of the five-year enhancement mandated by section 667, subdivision (a).

V. Disposition

The judgment is affirmed.

FOOTNOTES

FN1. All statutory references herein are to this code..  FN1. All statutory references herein are to this code.

2.   Section 1157:  “Whenever a defendant is convicted of a crime or attempt to commit a crime which is distinguished into degrees, the jury, or the court if a jury trial is waived, must find the degree of the crime or attempted crime of which he is guilty.   Upon the failure of the jury or the court to so determine, the degree of the crime or attempted crime of which the defendant is guilty, shall be deemed to be of the lesser degree.”

3.   This issue is presently pending before the California Supreme Court.   Hearing has been granted in People v. Rome (Crim. No. 23980) and People v. Nunley (Crim. No. 23837).

4.   “Serious felonies” are defined in section 1192.7, subdivision (c), also added by the initiative.   Robbery, the prior felony involved here, and burglary of a residence, appellant's present offense, are “serious felonies.”

5.   Accordingly, we disagree with People v. Whigam (1984, 4th Dist.) 158 Cal.App.3d 1161, 205 Cal.Rptr. 227.

6.   We note that the court specifically stated:  “I am torn on this case.   I think it desires more than the six years recommended.   I think nine is a good sentence.   I don't think it deserves more than nine.   The question is whether or not I stay a year of that five-year enhancement.   That is really the only thing I am quarreling with now.”  (Emphasis added.)

7.   Section 667, subdivision (a):  “Any person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately.   The terms of the present offense and each enhancement shall run consecutively.  (Emphasis added.)

8.   This issue is also presently pending before the California Supreme Court in People v. Fritz (Crim. No. 23838).

9.   The sentence enhancements in section 667 do not violate the constitutional provision against cruel and unusual punishment.  (People v. Villasenor (1984) 152 Cal.App.3d 30, 199 Cal.Rptr. 349.

STONE, Presiding Justice.

GILBERT and ABBE, JJ., concur.