PEOPLE v. BELLAMY (1984)

The defendant appeals a sentence of 23 years pronounced after his conviction in a felony case.   We remand for resentencing.

FACTS

On April 27, 1983, the defendant broke into the apartment of Linda Cripps while Ms. Cripps was home asleep in bed.   Once inside, the defendant burglarized the apartment, held Ms. Cripps at knifepoint, robbed her of her valuables, and stole her car.   Following a jury trial, the defendant was convicted of first degree burglary (Pen.Code, § 459), robbery (Pen.Code, § 211) and grand theft (Pen.Code, § 487.3).   The jury further found true the allegation that the defendant had used a deadly weapon during the commission of the burglary and robbery (Pen.Code, § 12022(b)).   The defendant was sentenced to the upper term of six years for the burglary plus an enhancement of one year for use of a deadly weapon, bringing his sentence to a total of seven years.   The sentences for the robbery and grand theft convictions were stayed.

The sentence was further enhanced pursuant to section 667 of the Penal Code for each of defendant's four prior felony convictions.   The sentence was enhanced five years for defendant's 1969 conviction for robbery, an additional five years for defendant's 1975 conviction for attempted oral copulation, one year for his 1980 conviction for receiving stolen property,¹ and a further five years for his 1980 conviction of second degree burglary.   These additional 16 year enhancements increased defendant's sentence to 23 years.

CONTENTIONS

Defendant's appeal comprises three grounds:  (1) that the trial court improperly advised the defendant of the maximum sentence he would incur when he admitted his prior felony convictions;  (2) that second degree burglary is not a “serious felony” under Penal Code section 1192.7(c)(18) and does not carry a five year enhancement under Penal Code section 667;  and (3) that Penal Code section 1170.1(g) limits the enhancement of defendant's sentence due to his prior convictions to no more than twice the base term for his present offense.

I

 We agree with defendant that he was improperly advised of the maximum sentence he would incur when he admitted his prior felonies and that this case must therefore be remanded for resentencing.   Following the jury's verdict, the trial court advised the defendant that he might receive an additional 13 years enhancement if he admitted his prior felony convictions.   Having admitted his prior convictions, however, the defendant was given an additional 16 years enhancement during sentencing.   Although the error during the admission appears to have been an arithmetical mistake by the trial court, and perfectly honest and inadvertent, we cannot hold that a difference of three years is merely de minimus.   In In re Yurko (1974) 10 Cal.3d 857, 864, 112 Cal.Rptr. 513, 519 P.2d 561 the Supreme Court stated that prior to accepting a defendant's admission of his prior felonies, the trial court must advise the defendant “of the precise increase in the term or terms which might be imposed, if any, in the accused's case pursuant to section 644 or other applicable statutes (see, e.g., §§ 666, 667).”   In the instant case, the defendant was not advised of the precise increase he might incur.   Although we doubt that this difference was the determining factor in defendant's decision to admit his prior felonies, we cannot hold that the error was without prejudice.   The defendant gave up the right to contest his prior convictions and to have a jury hear the evidence.   Consequently, we remand for resentencing pursuant to In re Yurko, supra.

II

 Defendant's second contention is that his conviction for second degree burglary is not a “serious felony” under Penal Code section 1192.7(c)(18) and does not carry a five year enhancement under Penal Code section 667.   As this issue must inevitably be addressed by the trial court on remand, we consider it now.

Penal Code section 1192.7(c)(18) lists as a serious felony “burglary of a residence.”  Penal Code section 667, subdivision (a), provides that:  “Any person convicted of a serious felony who previously has been convicted of a 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․”  Defendant contends, however, that second degree burglary is not a “burglary of a residence,” and thus not a serious felony, as it does not require the entry of a residence as a necessary element of the charge.   Defendant further contends that the trial court is forbidden to look behind the wording of the statute to determine if a residence was involved in defendant's particular case.   We disagree.

In the last year, this issue has been addressed numerous times by the appellate courts, with conflicting results.²  We conclude that the position taken by Divisions Two and Five of this district in People v. O'Bryan (1984) 150 Cal.App.3d 1116, 198 Cal.Rptr. 603 (hrng. granted) and People v. Johnson (1984) 153 Cal.App.3d 301, 200 Cal.Rptr. 350 (hrg. granted) is the proper approach.   Were we to adopt defendant's contention, no burglary conviction in California, either of the first or second degree, would be a serious felony, as neither first nor second degree burglary has as a necessary element the entry of a residence.   Defendant's 1980 conviction for second degree burglary could have been either a burglary of a residence during daytime or the daylight burglary of a nonresidential but inhabited structure, or the burglary of some other structure at any time.  (Stats.1978, ch. 579, § 23, p. 1985.)   Similarly, a conviction for first degree burglary could have been for either a burglary of a residence at night, or for the nighttime burglary of another inhabited but non-residential structure.   To adopt defendant's contention would be to effectively strike subdivision (c)(18) from section 1192.7 as no conviction for burglary in California could be used for enhancement.   We therefore conclude that the trial court may inquire as to the nature of the structure burglarized for enhancement purposes.

In reaching this decision, we are not persuaded that the holding in People v. Crowson (1983) 33 Cal.3d 623, 190 Cal.Rptr. 165, 660 P.2d 389 is applicable here.  Crowson held that a trial court could not look beyond the minimum elements of a foreign offense to determine if the defendant had committed an additional act—one not required by the foreign jurisdiction—that was necessary for the acts to be criminal under California.   The court held that a conviction in a foreign jurisdiction could not be used for enhancement unless the minimum statutory elements of the foreign crime would also be sufficient to establish the crime in California.   Crowson, however, was a case of statutory interpretation.  Penal Code section 667.5, subdivision (f) requires that before a foreign conviction can be used for enhancement, the foreign conviction must include “all of the elements of the particular felony as defined under California law․”  The court reasoned that, “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 the specific crime as defined by law, and not simply to the actual conduct of the defendant.”  (People v. Crowson, supra, 33 Cal.3d 623, 633, 190 Cal.Rptr. 165, 660 P.2d 389 (italics in original;  footnote omitted).)

There is nothing in the Penal Code, however, that requires such an interpretation to be applied to domestic convictions.   There is no statute regarding domestic convictions comparable to section 667.5, subdivision (f).   Moreover, to apply the rule to domestic convictions would be to eliminate burglary in California as a grounds for enhancement.   This result is clearly anomalous, and is contrary to the obvious intent of the People in enacting Proposition 8 when they specified “burglary of a residence” as a serious felony.

III

 The defendant also contends that Penal Code section 1170.1, subdivision (g) limits the enhancement of his sentence due to his prior convictions to no more than twice the basic term for his present offense.   Section 1170.1, subdivision (g) provides that “the term of enhancement shall not exceed twice the number of years imposed by the trial court on the base term․”  The People contend, however, that this section has been effectively repealed by Proposition 8.

This argument, too, has seen its share of appellate review.³  Recapsulated, it can be stated as follows:  On June 9, 1982, Proposition 8 added section 667 to the Penal Code.   Subdivision (a) of that section provides:  “Any person convicted of a serious felony who previously has been convicted of a 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.”   Moreover, article 1, section 28, subdivision (f) of the California Constitution states:  “Any prior felony conviction ․ shall subsequently be used without limitation for purposes of impeachment or enhancement․”

The People contend that these two sections repeal the double the base term limitation of section 1170.1(g).   We agree.   The language of section 667 to the effect that the present term and each enhancement shall run consecutively is clear and unambiguous and more specific than the general language of section 1170.1(g).   Nor does the enactment by the Legislature of Penal Code section 1170.95, subdivision (b) alter our analysis.   Subdivision (b) merely provides that a person presently convicted for multiple burglaries in an ongoing proceeding may be given sentences for his current offenses in excess of twice the base term.   It cannot be argued that this is a statement by the Legislature that section 667 is unclear.  Section 667, subdivision (a) does not concern itself with multiple current offenses, but rather with enhancements for prior offenses.   Without the enactment of section 1170.95, subdivision (b), the double the base term limitation of section 1170.1, subdivision (g) would still apply to such cases.   We therefore conclude that the trial court may sentence the defendant to more than twice the base term for the current offense due to his prior convictions.

The judgment is remanded to the superior court for resentencing in conformity with this opinion.

FOOTNOTES

1.   Respondent claims that there is some ambiguity in whether defendant's 1980 conviction was for receiving stolen property or for robbery.   The court must admit that it cannot find the ambiguity in defendant's probation report alleged by the Attorney General.   The court, however, leaves the determination of defendant's actual conviction to the trial court on resentencing.

2.   See People v. Jackson (1983) 149 Cal.App.3d 1051, 197 Cal.Rptr. 229 (hrg. granted);  People v. Lee (1984) 150 Cal.App.3d 455, 197 Cal.Rptr. 766;  People v. O'Bryan (1984) 150 Cal.App.3d 1116, 198 Cal.Rptr. 603 (hrng. granted);  People v. Johnson (1984) 153 Cal.App.3d 301, 200 Cal.Rptr. 350 (hrg. granted);  People v. Nunley (1984) 154 Cal.App.3d 868, 203 Cal.Rptr. 153 (hrng. granted);  People v. Rome (1984) 158 Cal.App.3d 307, 204 Cal.Rptr. 601 (hrg. granted).

3.   See People v. O'Bryan (1984) 150 Cal.App.3d 1116, 198 Cal.Rptr. 603 (hrg. granted);  People v. Johnson (1984) 153 Cal.App.3d 301, 200 Cal.Rptr. 350 (hrg. granted);  People v. Nunley (1984) 154 Cal.App.3d 868, 203 Cal.Rptr. 153 (hrg. granted);  People v. Rome (1984) 158 Cal.App.3d 307, 204 Cal.Rptr. 601 (hrg. granted);  People v. Traina (1984) 158 Cal.App.3d 872, 205 Cal.Rptr. 85 (hrg. granted);  People v. Whigam (1984) 158 Cal.App.3d 1161, 205 Cal.Rptr. 227;  People v. Golondrina (1984) 159 Cal.App.3d 1199, 206 Cal.Rptr. 271;  People v. Weaver (1984) 161 Cal.App.3d 119, 207 Cal.Rptr. 419.

KINGSLEY, Associate Justice.

WOODS, P.J., and ARGUELLES, J., concur.