PEOPLE v. NUNLEY (1984)

In the published portion of this opinion we consider the effect of several provisions of Proposition 8 on the propriety of the verdicts of guilt and of the trial court's application of Penal Code section 667 ¹ in sentencing appellant for a series of residential burglaries, five of which occurred before June 9, 1982, the effective date of that initiative's changes in constitutional and statutory law, and six of which occurred after that date.   We modify the judgment and affirm it as modified.

I. The Facts

Appellant was charged in information No. 108525 with one count of burglary.   (§ 459.)   He was alleged to have suffered four prior convictions for serious felonies within the meaning of section 667, namely, three burglaries of residences and one robbery.   He was also charged with having suffered two prior prison terms within the meaning of section 667.5 for two of the burglaries.

Appellant was also charged in information No. 108697 (as amended) with one count of first degree burglary, one count of attempted burglary, and eight counts of second degree burglary.   This information alleged the same priors as those specified in No. 108525.

A jury found appellant guilty of all counts as charged.   The facts supporting the jury verdicts which are pertinent to our inquiry are summarized as follows:

Information No. 108525

Count I (second degree burglary):  On July 16, 1982, between 2 and 3:45 p.m., while Dennison and Belton were away, appellant unlawfully entered their apartment on 22nd Avenue at Fulton Street through a kitchen window and took an Apple computer, a Sony Betamax video tape recorder, a Sony color television, a camera and lenses, a cassette recorder, a microcassette recorder, $12 in Canadian cash, some jewelry, and a pillowcase.   Appellant was arrested shortly after commission of the crime, while in possession of much of the stolen property, and positive identification of his palm print at the point of entry was made.

Information No. 108697 (Amended)

Count I (second degree burglary):  On April 28, 1982, between 2:30 and 6:30 p.m., while the Roschingers were away, appellant unlawfully entered their apartment at 741 Balboa Street by removal of a window in the front door and took a television set and approximately $30 in cash.   Positive identification of appellant's thumb print on the glass removed by the burglar from the front door was made.

Count II (first degree burglary):  On May 12, 1982, between 9 p.m. and 2:10 a.m., while Hughes and Walker were away, appellant unlawfully entered their apartment at 191 Frederick Street by removal of a glass window from the front door and took a tape recorder, a calculator, coins, and a pillowcase.   Positive identification of appellant's fingerprint on the glass removed by the burglar from the front door was made.

Count III (second degree burglary):  On May 18, 1982, between 8 a.m. and 4:30 p.m., while Ritter and Hernandez-Martin were away, appellant unlawfully entered their apartment at 275 Grattan Street via a bathroom window and took a camera and lenses, jewelry, and a large box.   Positive identification of appellant's fingerprint at the point of entry was made.

Counts IV and V (second degree burglary and attempted burglary):  On May 20, 1982, at approximately 4:45 p.m., while Bers, the occupant of apartment No. 5, was away, appellant unlawfully entered the apartment building at 351 Cornwall Street and then attempted to jimmy the front door to apartment No. 5.   Eyewitness identification of appellant as the perpetrator was made, as well as identification of appellant's car and clothing as that used by the perpetrator.   Positive identification of appellant's fingerprint at the attempted point of entry to apartment No. 5 was made.

Count VI (second degree burglary):  On June 17, 1982, between 8:30 a.m. and 6:30 p.m., while the Thomases were away, appellant unlawfully entered their apartment at 131 Central Avenue via a bedroom window and took a television, cameras and lenses, a watch, and a calculator.   Positive identification of appellant's fingerprint on the broken window glass at the burglar's point of entry was made.

Count VII (second degree burglary):  On June 20, 1982, between 3 p.m. and 8:30 p.m., while Bullwinkel was away, appellant unlawfully entered Bullwinkel's apartment at 1634 Fell Street via a back door/window and took a television, $50 in currency, and coins.   Positive identification of appellant's fingerprint on the glass jar from which some of the coins had been taken was made.

Count VIII (second degree burglary):  On July 1, 1982, between 4:30 p.m. and 7:30 p.m. while Bex was away, appellant unlawfully entered Bex' apartment at 125 Lyon Street via a bedroom window and took a camera, a portable radio, and headphones.   Positive identification of appellant's fingerprint on the window glass at the burglar's point of entry was made.

Count IX (second degree burglary):  On July 8, 1982, between 12:30 and 6:15 p.m., while Stein was away, appellant unlawfully entered Stein's apartment on 2070 Fell Street by breaking a glass window in the back door and took a cassette stereo, jewelry, an antique statue, and coins.   Positive identification of appellant's fingerprint on the broken glass from the door was made.

Count X (second degree burglary):  On July 19, 1982, between 5:40 and 6:40 p.m., while Lau was away, appellant unlawfully entered Lau's apartment at 1880 Fulton Street via a kitchen window and took photography equipment worth $5,000, jewelry, personal checks, and a pillowcase.   Positive identification of appellant's fingerprint on the metal drainpipe adjacent to the kitchen window was made.

After a separate trial on the alleged prior felony convictions, the jury found the following allegations true:  (a) appellant was previously convicted of a serious felony (robbery), in violation of section 211, on March 27, 1974, within the meaning of section 667;  (b) appellant was previously convicted of a serious felony (burglary of a residence), in violation of section 459, on May 25, 1976, within the meaning of section 667;  (c) appellant was previously convicted of a serious felony (burglary of a residence), in violation of section 459, on January 27, 1977, within the meaning of section 667;  (d) appellant was previously convicted of a serious felony (burglary of a residence), in violation of section 459, on November 24, 1978, within the meaning of section 667;  (e) appellant was previously convicted of a felony (burglary, second degree), in violation of section 459, on January 27, 1977, within the meaning of section 667.5, subdivision (b);  (f) appellant was previously convicted of a felony (burglary, second degree), in violation of section 459, on November 24, 1978, within the meaning of section 667.5, subdivision (b).

Appellant's sentence is discussed below.

II. Discussion **

III. Discussion

A. The Sentence

The trial court sentenced appellant to a total unstayed term of 21 years, as follows:

B. Length of Sentence

 Appellant contends that the maximum length of sentence which could have been imposed legally in this case was 12 years.   He relies on section 1170.1, subdivision (g), which provides:  “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 the defendant stands convicted of felony escape from an institution in which he is lawfully confined.”   Appellant reasons that since his base term was fixed at six years and because none of the express exceptions set out in section 1170.1, subdivision (g), apply, the “twice-the-base-term” limit of that section applies.   We do not agree.

On June 9, 1982, the initiative measure known as Proposition 8 took effect.   (See People v. Smith (1983) 34 Cal.3d 251, 257, 193 Cal.Rptr. 692, 667 P.2d 149.)   It contained three provisions which affect the question under consideration.   First, Proposition 8 added section 28 to article I of the California Constitution.   Subdivision (f) of that section provides:  “Use of Prior Convictions.   Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding․”  (Emphasis added.)

Second, Proposition 8 added section 667 to the Penal Code, which provides:  “(a) 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.

“․

“(d) As used in this section ‘serious felony’ means a serious felony listed in subdivision (c) of Section 1192.7․”

Third, Proposition 8 added Penal Code section 1192.7, subdivision (c) of which lists “burglary of a residence” as a “serious felony.”

In our view the provisions of Proposition 8 unambiguously modified those of section 1170.1, subdivision (g), and that code provision now must be read with an additional constitutionally mandated exception:  “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.”   This reading of the section is required by Proposition 8's decree that priors shall be used “without limitation” to enhance sentences (Cal. Const., art. I, § 28, subd. (f)) and that a five-year consecutive sentence shall be added to a serious felony sentence for each prior serious felony conviction (§ 667).

Because these provisions are clear and unambiguous, we are not called upon to engage in constitutional or statutory construction.  (See generally, 5 Witkin, Summary of Cal.Law (8th ed. 1974) Constitutional Law, § 68, p. 3307.)   Our reading is consistent with the view of the legislative analyst, which was presented to the voters in the ballot pamphlet prepared for the June 1982 election.   In explaining the provisions of Proposition 8, the legislative analyst stated in relevant part:  “․ 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 emphasis.)

We also note that our Supreme Court has characterized Proposition 8 as “․ permit[ting] the unlimited use in a criminal proceeding of ‘any prior felony conviction’ for impeachment or sentence enhancement, ․” (Brosnahan v. Brown (1982) 32 Cal.3d 236, 243, 186 Cal.Rptr. 30, 651 P.2d 274.)   And, finally, in People v. Smith, supra, 34 Cal.3d 251, 193 Cal.Rptr. 692, 667 P.2d 149, the Supreme Court referred to these provisions as “․ abolishing all limitations on the use of prior convictions against the defendant for ․ enhancement of sentence ․”  (Id., at p. 261, 193 Cal.Rptr. 692, 667 P.2d 149;  see also Greer & Rosen, The Felony Sentencing Manual [hereafter cited as Greer & Rosen] (1984) p. 13–5 [“Section 1170.1(f) is not specifically amended or repealed by Proposition 8.   However, the ‘without limitation’ provision of section 28(f) effectively removes those terms imposed for prior convictions or resulting separate prison terms from the twice-the-base-term limitation.”].)

Appellant cites People v. Sequeira (1981) 126 Cal.App.3d 1, 179 Cal.Rptr. 249 in support of his claim that the length of his sentence was legally impermissible.   That decision interpreted the enumerated exceptions in section 1170.1, subdivision (g) (then (f)—the “unless” clause), as permitting an increase in length of sentence over and above twice the base term only to the extent of the additional time specified for the enhancement in question.   (Thus, in Sequeira the maximum allowable term was 12 years, that is, twice the base term (10 years) plus enhancements (2 years).)  (Id., at p. 21, 179 Cal.Rptr. 249.)   Appellant's reliance on Sequeira is misplaced for two reasons.   First, at least two decisions have held that the Sequeira court's reading of section 1170.1, subdivision (g), is incorrect.  (People v. Wright (1979) 92 Cal.App.3d 811, 813–814, 154 Cal.Rtpr. 926;  People v. McClelland (1982) 136 Cal.App.3d 503, 506–508, 186 Cal.Rptr. 365.)   We agree with the holdings in these cases, stated by the Wright court in this way:  “The unless clause simply extinguishes any applicability at all of subdivision [ (g) ], and this is the only reasonable interpretation it can have.”   (People v. Wright, supra, 92 Cal.App.3d at p. 814, 154 Cal.Rptr. 926.)   Second, even if the Sequeira holding were correct, it would not benefit appellant.   Here the base term was 6 years.   Under the Sequeira approach the court could have imposed an unstayed term of 22 years (twice the base term [12 years], plus enhancements under section 667 [10 years] ), which under our present holding must now be imposed without limitation.

Appellant cites passage of section 1170.8 (now § 1170.95), effective January 1, 1983, as indicating “․ that the Legislature was aware that between June 9, 1982 and December 31, 1982, the provisions of Penal Code § 1170.1(g) acted as a limitation upon enhancements and consecutive sentences in cases such as this one.”   We find no such indication.   Subdivision (a) of section 1170.8 (now § 1170.95) raises from five to ten years the upper limit on subordinate terms for consecutive sentences which are all imposed for residential burglaries.   Subdivision (b) eliminates the twice-the-base-term limit if defendant stands convicted of at least two residential burglaries.   Subdivision (c) defines “ ‘residential burglary.’ ”   Passage of this section indicates nothing one way or the other about the interrelationship of sections 667 and 1170.1, subdivision (g).

We conclude that appellant's 21-year term was not impermissibly long.

C. “Burglary of a Residence”

Section 667, which we have quoted in relevant part above, provides that a person convicted of a serious felony who previously has been convicted of a serious felony shall receive a five-year enhancement for each such prior conviction, and that “serious felony” means a serious felony listed in section 1192.7, subdivision (c).   The latter statute lists 25 serious felonies, number 18 of which is “burglary of a residence.”

1. Notice

“ ‘Due process of law 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.’  (In re Hess [1955] 45 Cal.2d [171] at p. 175 [288 P.2d 5].)”  (People v. West (1970) 3 Cal.3d 595, 612, 91 Cal.Rptr. 385, 477 P.2d 409;  accord, People v. Lohbauer (1981) 29 Cal.3d 364, 368, 173 Cal.Rptr. 453, 627 P.2d 183;  People v. Wolcott (1983) 34 Cal.3d 92, 101, 110, 192 Cal.Rptr. 748, 665 P.2d 520 (conc. and dis. opn. of Bird, C.J.).)

 Appellant's claim that he had no notice that he was being charged with serious felonies is not supported by the record.   Nine of the counts were stated in the two informations in the following form:  appellant is accused “․ of the crime of felony, to-wit:  VIOLATION OF SECTION 459 OF THE CALIFORNIA PENAL CODE, committed as follows:  The said defendant, on or about [a specified date] ․ did wilfully and unlawfully enter an apartment, to-wit:  the residence of [the victim(s) ], located at [address and apartment number], with the intent to commit larceny.”

The remaining two counts were similarly worded except that one charged attempted burglary and the other charged burglary of a “residential apartment building.”

Although the accusatory pleadings did not expressly state that the charged crimes were “serious” felonies, that is not required.   The question is whether appellant was sufficiently advised of the charges against him so as not to be taken by surprise.  (People v. West, supra, 3 Cal.3d 595, 91 Cal.Rptr. 385, 477 P.2d 409.)   We hold that in accusing appellant of burglarizing “residence[s]” the district attorney gave appellant adequate notice that a serious felony was alleged.

Furthermore, the informations provided additional clear advisements that serious felonies were charged.   Each information alleged four prior convictions of serious felonies under section 667.   Because section 667 only imposes enhancements for previous serious felonies upon persons presently convicted of a serious felony, these allegations served as additional notice to appellant that he was presently charged with serious felonies.

Thus we find appellant's contention of lack of notice totally without merit.

2. Vagueness

 The due process clauses of the federal and state constitutions (U.S. Const., 14th Amend.;  Cal. Const., art. I, § 15) mandate that no one should be required to speculate as to the meaning of penal statutes.  (Katzev v. County of Los Angeles (1959) 52 Cal.2d 360, 370, 341 P.2d 310.)  “A statute must be definite enough to provide a standard of conduct for those whose activities are proscribed as well as a standard for the ascertainment of guilt by the courts called upon to apply it.  [Citations.]”  (People v. McCaughan (1957) 49 Cal.2d 409, 414, 317 P.2d 974;  see also People v. Mirmirani (1981) 30 Cal.3d 375, 382, 178 Cal.Rptr. 792, 636 P.2d 1130.)

We first assess appellant's claim that “burglary of a residence” is vague in light of the following principles stated in Bowland v. Municipal Court (1976) 18 Cal.3d 479, 492, 134 Cal.Rptr. 630, 556 P.2d 1081:  “In examining statutes challenged on vagueness grounds, courts have looked not merely at the hypothetical cases to which the statute has uncertain applicability, but also at the act allegedly committed by the charged defendant.   The presumptive validity of a legislative act militates against invalidating a statute merely ‘․ because difficulty is found in determining whether certain marginal offenses fall within ․ [its] language.  [¶]  Void for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his [or her] contemplated conduct is proscribed.’   [Citations.]  We are not obliged to ‘․ consider every conceivable situation which might arise under the language of the statute ․’ [citation], so long as that language may be given ‘․ a reasonable and practical construction in accordance with the probable intent of the Legislature’ and encompassing the conduct of the defendants [citation].   Thus [appellant] cannot complain of the vagueness of a statute if the conduct with which [he is] charged falls clearly within its bounds.   In the matter before us we conclude that it does.”   (Emphasis and the first two bracketed items [“[its]” and “[¶]”] added by the Bowland court.)

 In nine of the counts before us appellant was charged with feloniously entering apartments which were residences of specified victims.   We can conceive of no reasonable interpretation of the word “residence” which would not include apartments of the type which appellant burglarized.   His conduct was obviously proscribed and fell within the bounds of the statute.   Therefore, on these counts appellant cannot be heard to complain of the vagueness of the statute.   The same applies to the count charging attempted burglary of the Bers apartment (action No. 108697, count V).

 On the count charging burglary of the residential apartment building located at 351 Cornwall on May 20, 1982 (action No. 108697, count IV, concurrent two-year sentence, stayed), we hold that felonious entry into the common area of an apartment building (or condominium complex) constitutes burglary of a residence, and that no vagueness problem is presented by this count.   This conclusion is consistent with the legislative history of the burglary statute, which has been one of enlarging the scope of the original common law crime, and with the judicial interpretations of the statute which have aimed at giving effect to the legislative purpose of extending its protection.  (People v. Brooks (1982) 133 Cal.App.3d 200, 204, 183 Cal.Rptr. 773;  In re Christopher J. (1980) 102 Cal.App.3d 76, 79, 162 Cal.Rptr. 147.)

The word “residence” means simply a place where someone lives.  (Webster's New Internat. Dict. (3d ed. 1970) p. 1931.)   It is synonymous with “inhabitancy.”  (People v. Allard (1929) 99 Cal.App. 591, 592, 279 P. 182.)   The legislative determination to treat residential burglaries more severely than others is predicated upon the “statistically greater probability” that an occupant will be present and confronted by the intruder.  (People v. Cook (1982) 135 Cal.App.3d 785, 796, 185 Cal.Rptr. 576;  see also People v. Guthrie (1983) 144 Cal.App.3d 832, 847, 193 Cal.Rptr. 54.)   The courts, in following the legislative intent, have found, for example, that felonious entry into an open carport is burglary of a dwelling house (In re Christopher J., supra, 102 Cal.App.3d 76, 162 Cal.Rptr. 147), as is such entry into an attached garage or enclosed patio (People v. Cook, supra, 135 Cal.App.3d 785, 796, 185 Cal.Rptr. 576).

This reasoning applies with equal or greater force when the common areas of an apartment building (or condominium complex) are concerned.   These areas are not open to the public;  they comprise a portion of each occupant's dwelling house.   The criminal who unlawfully enters there violates the habitation of each of them, and each is endangered by the possibility of confronting him or her.   It follows that entry into the common area under consideration constituted burglary of a residence.  (See also People v. Franco (1926) 79 Cal.App. 682, 250 P. 698 [breaking into showcase constituted burglary of shoe store];  Hahn v. State (1900) 60 Neb. 487, 83 N.W. 674 [breaking into common hallway of multi-unit building properly pleaded as burglary of resident manager's dwelling house].)

 Appellant also argues that the Legislature's passage of former section 1170.8, effective January 1, 1983 (Stats.1982, ch. 1296, § 1, No. 10 West's Cal.Legis.Service, p. 6923 [now § 1170.95] ) shows that body's awareness that the term “burglary of a residence” as used in Proposition 8 was vague.   We do not agree.

Section 1170.8 (now § 1170.95), subdivision (a), raises from five to ten years the maximum total of subordinate terms for consecutive offenses which are all “residential burglaries.”   Subdivision (b) removes the twice-the-base-term limit on the term of imprisonment where the defendant stands convicted of “at least two residential burglaries.” ²  Subdivision (c) provides:  “As used in this section, ‘residential burglary’ means burglary in the nighttime or a felony burglary in the daytime, of an inhabited dwelling house or trailer coach, as defined in Section 635 of the Vehicle Code, or the inhabited portion of any other building.”  (Emphasis added.) ³

Had the Legislature intended its definition of “ ‘residential burglary’ ” to cure the alleged defect in Proposition 8's failure to define “burglary of a residence,” it would not have limited application of the definition in section 1170.8, subdivision (c), to “this section.”   Also, section 1170.8 and section 667/1192.7, subdivision (c), deal with different subject matter and use different terminology.   We find nothing which supports appellant's speculation regarding the Legislature's motivation.

3. Lack of Definition

 Appellant contends that allegations under section 667 are defective because at the time of trial there was “․ no such crime as ‘burglary of a residence’ ․” ⁴  He argues that because there was no defined substantive offense called “burglary of a residence” until after the time of trial (that is, when the Legislature adopted section 1170.8), it was improper to find both that he had previously committed that offense and that he presently committed that offense.  Section 667, however, was not intended to and does not purport to define substantive criminal offenses.   It merely classifies already existing substantive offenses for the purpose of fixing (enhancing) sentence.   We find no authority, and appellant cites none, requiring that an enhancing statute define substantive criminal offenses.   Furthermore, the concept of “burglary of a residence” was included within the scope of section 459 before the passage of Proposition 8.  (People v. Allard, supra, 99 Cal.App. 591, 279 P. 182;  People v. Valdez (1962) 203 Cal.App.2d 559, 21 Cal.Rptr. 764.)

People v. Crowson (1983) 33 Cal.3d 623, 190 Cal.Rptr. 165, 660 P.2d 389, upon which appellant relies, is not in point.   There defendant's sentence had been enhanced pursuant to section 667.5, subdivision (b), for a prior separate federal prison term.   The prior federal conviction was for conspiracy.   Under section 667.5, subdivision (f), such prior could be used to enhance only if the offense “․ includes all of the elements of the particular felony as defined under California law ․”  Because California conspiracy includes an overt act as an element of the offense and federal conspiracy does not, the court held that enhancement was improper.   The court rejected the argument that it would be permissible to go behind the elements of the foreign crime in order to determine whether the defendant's conduct in the prior incident would have subjected him to a felony conviction of California.   The basis for the court's holding was the language in the statute itself, which made clear that it was concerned with “ ‘offenses,’ ” that is, specific crimes defined by law, and not with the actual conduct of the defendant.  (Id., at p. 633, 190 Cal.Rptr. 165, 660 P.2d 389.)   In support of this view, the court cited In re Finley (1968) 68 Cal.2d 389, 66 Cal.Rptr. 733, 438 P.2d 381, construing a parallel statutory provision, section 668.  Crowson interpreted Finley as holding that it is impermissible to go behind the adjudicated elements of a foreign crime in an attempt to show that defendant in fact committed a greater, lesser, or different offense.  (Crowson, supra, 33 Cal.3d at pp. 633–634, 190 Cal.Rptr. 165, 660 P.2d 389.)   Finally, the Crowson court rejected the People's argument that enhancement was proper because in the particular foreign case under consideration two overt acts had been charged in the accusatory pleading.   The court reasoned that in light of federal law these allegations were surplusage, and defendant would have had no reason or incentive to contest them in that proceeding.  (Id., at p. 634, 190 Cal.Rptr. 165, 660 P.2d 389.)

Although section 667 contains language similar to that under consideration in Crowson, the issue before us is distinguishable from that addressed by the Crowson court.  Section 667, subdivision (a), imposes an enhancement on “[a]ny 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, ․”  (Emphasis added.)   As we have seen, subdivision (d) then incorporates the definition of “ ‘serious felony’ ” found in section 1192.7, subdivision (c), number (18) of which is “burglary of a residence.”

Unlike section 667.5 (at issue in Crowson, supra, 33 Cal.3d 623, 190 Cal.Rptr. 165, 660 P.2d 389), where the concern is whether defendant has a previous conviction of an offense, section 667 addresses itself to the nature of that offense, namely, whether it was “serious,” as that term is used in section 1192.7.   In the case of prior burglary convictions the trial court necessarily must determine not only whether defendant committed a prior burglary offense, but also whether that burglary was “serious” because it was of a residence.   In other words, where burglary is involved, section 667 is concerned with the defendant's prior conduct, not simply with the question whether he committed an offense which has all of the elements of statutory burglary.   This fact distinguishes the case at bench from the essential aspect of the Crowson holding.

Moreover, Finley, upon which the Crowson court relied, has no application in the present situation.  Finley is concerned with the proper scope of review by writ of habeas corpus.   The Supreme Court previously had established the rule permitting habeas corpus petitioners who challenged habitual criminal adjudications wider scope of review than is available when the writ is sought to review a judgment of conviction.  (In re Finley, supra, 68 Cal.2d at p. 390, 66 Cal.Rptr. 733, 438 P.2d 381.)   This wider scope of review for habeas corpus petitions became known as the McVickers-Seeley rule, after the seminal decisions.  (In re McVickers (1946) 29 Cal.2d 264, 176 P.2d 40;  In re Seeley (1946) 29 Cal.2d 294, 176 P.2d 24.)   The rule permitted the petitioner “․ to go outside the record of the California prosecution that resulted in the determination of habitual criminality and to bring in the record of the challenged foreign prior conviction;  he is allowed to call the attention of the habeas corpus court to the law of the state where it was suffered;  and he is allowed thus to show that the minimum adjudicated elements of the foreign crime are not those of a California felony enumerated in section 644.  [Citations.]”  (In re Finley, supra, 68 Cal.2d at p. 391, 66 Cal.Rptr. 733, 438 P.2d 381.)

In Finley's case the only record of the prior (1932) Washington conviction was “an authenticated copy of the judgment, sentence, and commitment” showing a second degree burglary conviction.   Since the minimum adjudicated elements of that offense in Washington were not the equivalent of burglary in California, the prior could not be used to support a finding of habitual criminality.   (Id., at pp. 391–392, 66 Cal.Rptr. 733, 438 P.2d 381.)

Having held that petitioner was entitled to relief, the Finley court then turned to the People's request that it reconsider and overrule the McVickers-Seeley rule and that it limit habeas petitioners to the normal scope of review by that writ, that is, extending review only to the trial court's jurisdiction to make the determination of habitual criminality and limiting review to the face of the record of the criminal proceeding that resulted in that determination.  (In re Finley, supra, 68 Cal.2d at p. 392, 66 Cal.Rptr. 733, 438 P.2d 381.)

In support of their suggestion to the Finley court, the People urged that the McVickers-Seeley rule permitted relief in contravention of established rules of policy requiring the habeas petitioner to excuse his failure to raise his contention at trial and on appeal and to explain his delay in raising it by habeas corpus.  (In re Finley, supra, 68 Cal.2d at p. 392, 66 Cal.Rptr. 733, 438 P.2d 381.)   The Supreme Court rejected this argument by explaining that the McVickers-Seeley situation does not entail the difficulties which would be encountered in other habeas corpus proceedings if the usual limiting rules of policy were not in force.   The court reasoned that (1) the fact of the foreign conviction is made of record at the time of the conviction, (2) the law of the jurisdiction in which it was suffered can be judicially noticed, and (3) the least adjudicated elements of the prior remain the same whether they are questioned at trial or by habeas corpus petition.

It was in this context that the Finley court stated, “The McVickers-Seeley use of the writ ․ does not permit the opening or reopening of questions calling for resolution on the basis of the testimony of witnesses who may have died or disappeared or whose memories have faded․  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.]”  (In re Finley, supra, 68 Cal.2d at pp. 392–393, 66 Cal.Rptr. 733, 438 P.2d 381.)

It is clear that this language was used in the course of discussion of the appropriate procedure upon petition for writ of habeas corpus challenging the validity of an habitual criminal adjudication by attacking the validity of a prior foreign conviction.   The Crowson court characterized this language as having been used in a “․ review ․ [of] the general principles applicable in determining whether a foreign conviction could be used ․ as a basis for increased punishment under the then-existing habitual criminal law ․” and as being Chief Justice Traynor's explanation that “such a determination” does not involve “ ‘․ the opening or reopening of questions ․,’ ” et cetera.   (People v. Crowson, supra, 33 Cal.3d at p. 633, 190 Cal.Rptr. 165, 660 P.2d 389.)   With all due respect, Finley simply does not hold that at trial the prosecution and defense can never look at the conduct involved in and underlying defendant's prior conviction.   We therefore find the Crowson dictum indicating otherwise unpersuasive on the point here under consideration, and we reject appellant's assertion predicated upon it.  (See Administrative Office of the Courts News Release No. S.C. 15/84, People v. O'Bryan, hg. granted, Mar. 29, 1984, Crim. 23621 (see 2 Crim. 43580, 150 Cal.App.3d 1116, 1123, 198 Cal.Rptr. 603);  People v. Johnson (1984) 153 Cal.App.3d 301, 200 Cal.Rptr. 350;  but see Administrative Office of the Courts News Release No. S.C. 15/84, People v. Jackson, hg. granted, Mar. 29, 1984, Crim. 23622 (see 4 Crim. 15360, 149 Cal.App.3d 1051, 197 Cal.Rptr. 229);  People v. Lee (1984) 150 Cal.App.3d 455, 458–459, 197 Cal.Rptr. 766;  People v. Watkins (1984) 153 Cal.App.3d 528, 200 Cal.Rptr. 523.)

 Accordingly, we hold that where a defendant is alleged to have suffered a prior serious felony conviction, i.e., burglary of a residence, the proponent of the evidence has the burden of showing the specific serious nature of the prior offense, and that in doing so the proponent may utilize any competent relevant evidence.

This rule does not place an undue burden on the prosecution, which is normally the proponent of such evidence.   As stated in People v. Thompson (1981) 127 Cal.App.3d 13, 19, 179 Cal.Rptr. 328, discussing the prosecution's burden of showing that a prior burglary involved the element of dishonesty before using that prior burglary conviction for impeachment purposes, “․ the prosecutor will normally obtain the defendant's prior record during routine trial preparation.   In some cases the defendant's rap sheet itself might reasonably imply that the burglary involved dishonesty, as for example when the defendant was simultaneously convicted of burglary and theft.   If the prosecutor intends to impeach the defendant, the prosecutor would normally obtain, during trial preparation, some competent evidence of conviction, in case the defendant denied his prior conviction.   If the judgment of conviction did not contain recitals disclosing the nature of the burglary, it may be disclosed by the accusatory pleading.   If that is insufficient, information could be obtained from such sources as the prior prosecutor, the prior defense counsel, the prior probation officer, or the Department of Corrections.   The probation officer's report from the prior case would be an appropriate source.   There might be other indications of the nature of the burglary in the superior court file.   If necessary, of course, resort could be had to the preliminary hearing transcript or trial transcript.   Many of these sources are readily available to prosecutors.”  (See also Jackson v. Superior Court (1983) 140 Cal.App.3d 526, 189 Cal.Rptr. 491 [permitting trial court to examine circumstances of 14-year-old murder to determine its degree for purposes of fixing duration of insanity commitment].)

D. Instructions

Appellant denied the allegations that he had suffered four prior convictions for serious felonies within the meaning of section 667 and that he had suffered two prior prison terms within the meaning of section 667.5, and he was granted a bifurcated hearing on those allegations.  (See People v. Bracamonte (1981) 119 Cal.App.3d 644, 174 Cal.Rptr. 191.)

 During instruction on prior serious felonies the court told the jury that “Burglary in violation of Penal Code Section 459, whether the first degree or second degree, ․ [is a] serious felon[y] as a matter of law.”   Appellant assigns this statement as error.   However, the court later clarified that it was only referring to burglary of a residence.   Thus, taken as a whole, the instructions told the jury that burglary of a residence is a serious felony regardless of the degree of the crime.   This was a correct statement of the law and undoubtedly was given to avoid confusing the jury which, during the guilt phase of the trial, had been instructed on the difference between first and second degree burglary for purposes of the present alleged offenses.

 Appellant also complains that no definition of “burglary of a residence” was given in the instructions.   Insofar as the alleged prior serious felonies which formed the basis for the section 667 enhancement were concerned, the evidence was clear that they were of people's habitations.   Therefore, even if the court should have instructed the jury on the meaning of “residence,” which we decline to hold, appellant could not have been prejudiced by the omission.

E. Application of Section 667 to Prior Convictions Resulting from Guilty Pleas

 Appellant contends that the express language of section 667 precludes its application where the prior serious felony conviction was pursuant to a plea of guilty.

Section 667, subdivision (a), provides for a five-year enhancement “․ for each such prior [serious felony] conviction on charges brought and tried separately․”  (Emphasis added.)   Appellant argues that a case resolved by a guilty plea was never “tried” and therefore that section 667 cannot apply.   We do not agree.

“Tried” is the past tense of the verb “try,” which means “to examine or investigate judicially:  examine by witnesses or other judicial evidence and the principle of law ․:  to conduct the trial of ․”  (Webster's New Internat. Dict., supra, at p. 2457.)  “The word ‘trial’ may be used broadly ․ to describe any procedure for reaching a decision on the merits, or narrowly, as denoting the contest and decision on factual issues.   [Citation.]”  (Kindt v. Kauffman (1976) 57 Cal.App.3d 845, 864, 129 Cal.Rptr. 603, disapproved on another ground in Ewing v. Cloverleaf Bowl (1978) 20 Cal.3d 389, 401, fn. 8, 143 Cal.Rptr. 13, 572 P.2d 1155.)   Whether a hearing constitutes a “trial” may depend upon the language of the statute in question and its purpose.  (See 4 Witkin, Cal.Procedure (2d ed. 1971) Trial, § 2, p. 2862.)

We have held, for example, that “[t]he tendering of a guilty plea pursuant to a plea bargain, followed by acceptance of the plea by the judge, is the functional equivalent of a trial under Code of Civil Procedure section 170.6.”  (Smith v. Municipal Court (1977) 71 Cal.App.3d 151, 153, 139 Cal.Rptr. 121.)

From the language of section 667 and its purpose, which is to punish recidivism, it is absolutely clear that the phrase, “brought and tried separately,” refers to any judicial proceeding resulting in a final judgment of guilt of a serious felony.  (See People v. Ebner (1966) 64 Cal.2d 297, 304, 49 Cal.Rptr. 690, 411 P.2d 578.)   Appellant's reading of the statute not only would raise serious constitutional questions (see In re Lewallen (1979) 23 Cal.3d 274, 152 Cal.Rptr. 528, 590 P.2d 383 [defendant may not be punished for asserting constitutional right] ), but is nonsensical and deserving of no further discussion.

F. Ex Post Facto

Appellant complains that application of section 667 in this case violated ex post facto rules where (1) enhancements were imposed for prior convictions which occurred before adoption of Proposition 8, and (2) enhancements were applied to sentences for crimes which occurred prior to adoption of that proposition.   We address these contentions in turn.

1. Pre-Proposition 8 Priors

 Application of section 667 to enhance a sentence for a crime committed post-Proposition 8 because of a pre-Proposition 8 prior conviction for a serious felony does not violate article I, section 9 of the United States Constitution or article I, section 9 of the California Constitution, as being an ex post facto determination of criminal liability.

“[I]ncreased penalties for subsequent offenses are attributable to the defendant's status as a repeat offender and arise as an incident of the subsequent offense rather than constituting a penalty for the prior offense.   [Citations.]”  (In re Foss (1974) 10 Cal.3d 910, 922, 112 Cal.Rptr. 649, 519 P.2d 1073.)   For this reason statutes imposing such penalties are not ex post facto laws.

At the time appellant committed his post-Proposition 8 offenses, section 667 was in full force and effect and apprised him of the possible consequences of his antisocial behavior.   Application of section 667 enhancements to these offenses does not fall into any of the four categories of ex post facto laws:  it does not (a) make criminal an action innocent when done;  (b) make more serious an act already criminal when done;  (c) inflict greater punishment than attending the act at the time it was committed;  or (d) permit defendant to be convicted with less evidence than was required when the act was done.   (See People v. Sobiek (1973) 30 Cal.App.3d 458, 472, 106 Cal.Rptr. 519.)

“A statute is not retroactive in operation merely because it draws upon facts antecedent to its enactment for its operation.  [Citation.]”  (People v. Venegas (1970) 10 Cal.App.3d 814, 823, 89 Cal.Rptr. 103.)

“Clearly, the punishment prescribed for prior serious felony convictions under Proposition 8 may be imposed even though the prior convictions were suffered prior to the enactment of section 667.  [Citations.]”  (Greer & Rosen, supra, at p. 13–3.)   We so hold.

2. Pre-Proposition 8 Crimes

 The converse of what we have just said applies to enhancement pursuant to section 667 of sentences for crimes committed pre-Proposition 8.   Such enhancement would constitute an ex post facto determination in violation of the state and federal Constitutions.   In People v. Smith, supra, 34 Cal.3d 251, 193 Cal.Rptr. 692, 667 P.2d 149, in which the Supreme Court held that Proposition 8 should be applied only to crimes committed after its adoption, the court cited the provision under consideration as a “[p]rime” example of a “clearly substantive” provision which “․ would be ex post facto if ․ applied to crimes committed before the measure took effect.”  (Id., at p. 261, 193 Cal.Rptr. 692, 667 P.2d 149.)   The People therefore properly concede that appellant's contention in this regard has merit in the abstract.

 However, examination of the sentence imposed on appellant reveals that he has not been subjected to this prohibited ex post facto application of section 667.   Appellant was convicted of five pre-Proposition 8 felonies and of six post-Proposition 8 felonies.  (See section III, subdivision A, ante, p. 157.)   His commission of the former did not exempt him from application of section 667 to the latter.  (See People v. Smith, supra, 34 Cal.3d at p. 262, 193 Cal.Rptr. 692, 667 P.2d 149.)

 Appellant's claim that he is entitled to “expungement or modification” of his sentence is predicated on the erroneous premise that the trial court applied section 667 enhancements only to his principal term, which was for a pre-Proposition 8 crime (count II, No. 108697, 1st degree burglary, six-year upper base term).

Section 667, subdivision (a), provides for a five-year enhancement for each prior serious felony “․ in addition to the sentence imposed by the court for the present offense, ․” and that the “․ terms of the present offense and each enhancement shall run consecutively.”   Appellant's sentence consisted of nine consecutive prison terms imposed for both pre- and post-Proposition 8 offenses.   After the trial court selected the principal term, which was aggravated by appellant's 1974 and 1976 convictions (see Cal.Rules of Court, rule 421(b)(3)), it used the remaining two priors (from 1977 and 1978) to impose two section 667 enhancements, to run consecutively to each of those nine terms.

Although the court's selection of words reveals a theoretically improper enhancement under section 667 of pre-Proposition 8 priors, in fact appellant's term is exactly what it would have been had the court not made the apparent error.   This is because a trial court, when imposing consecutive sentences, selects as the principal term “․ the greatest term of imprisonment imposed by the court for any of the crimes, ․” whether the convictions occurred “․ in the same proceeding or court or in different proceedings or courts, ․” (§ 1170.1, subd. (a);  see Greer & Rosen, supra, at p. 1–3.)   Appellant's proper unstayed sentence should therefore be viewed not as set out in the chart at the beginning of our discussion, but as follows:

Because appellant received an unstayed term of 21 years, he suffered no prejudice from the trial court's stating that the section 667 enhancements were to run consecutive to the sentences for the pre-Proposition 8 offenses.   Appellant complains that his sentence has the “appearance of capriciousness,” but, as stated by the Supreme Court, “Wherever a line [setting the effective date of Proposition 8] is drawn, of course, some appearance of arbitrariness is inevitable the more closely one approaches it; ․”  (People v. Smith, supra, 34 Cal.3d at p. 262, 193 Cal.Rptr. 692, 667 P.2d 149.)   As appellant's crimes not only “approach” the line, but actually effectively straddle it, the calculation of his sentence may take on a strange appearance, but that does not render the sentence improper.

The abstract of judgment shall be modified to reflect that the enhancements pursuant to section 667 run consecutively only to the sentences for post-Proposition 8 offenses.

IV. Disposition

The judgment is modified to reflect that the 10 years of enhancement imposed pursuant to Penal Code section 667 are to run consecutive to the terms imposed for count I in action No. 108525 and for counts VI, VII, VIII, IX, and X in action No. 108697.   As modified, the judgment is affirmed.

FOOTNOTES

1.   All further statutory citations are to the Penal Code unless otherwise indicated.

FOOTNOTE.   Part II of this opinion examines six issues raised by appellant which we consider are without merit and do not meet the standards for publication;  it is thus not certified for publication.  (See fn., ante, at p. 155.)

2.   Former section 1170.8, subdivisions (a) and (b), provided as follows:  “(a) Notwithstanding the provisions of Section 1170.1 relating to the maximum total of subordinate terms for consecutive offenses which are not ‘violent felonies,’ the total of the subordinate terms for consecutive offenses which are all residential burglaries may exceed five years but shall not exceed 10 years.“(b) Notwithstanding the provisions of Section 1170.1, the term of imprisonment may exceed twice the number of years imposed by the trial court as the base term pursuant to subdivision (b) of Section 1170 if the defendant stands convicted of at least two residential burglaries.”   The section was renumbered and amended in a manner not relevant to our discussion by Statutes 1983, chapter 142, section 122, No. 3 Deering's Advance Legislative Service, page 284.

3.   Section 459 provides in part:  “Every person who enters any house, room, apartment, tenement, ․ or other building, [or] trailer coach, as defined in Section 635 of the Vehicle Code, ․ with intent to commit grand or petit larceny or any felony is guilty of burglary.   As used in this chapter, ‘inhabited’ means currently being used for dwelling purposes, whether occupied or not.”

4.   The authors of The Felony Sentencing Manual anticipated this argument.   In discussing Proposition 8, and section 1192.7, subdivision (c), in particular, they say:  “To avoid confusion in the electorate, Proposition 8 defines serious felonies in the narrative form without reference to the specific Penal Code sections to which the descriptions correspond.   This lack of specificity may create some confusion in pleading.   For example, the crime of ‘burglary of a residence’ is designated a serious felony pursuant to subdivision (c)(18).   Although Penal Code section 459 includes a ‘house,’ a ‘room,’ or an ‘apartment’ as residential areas subject to its provisions, there is no mention of a ‘residence’ in the definition of burglary.   Arguably, there is no such crime.   Such construction would mean the defendant could not presently stand convicted of nor have previously been convicted of this offense, and an enhancement could not be imposed.   More likely, however, the authors intended ‘residence’ to be a comprehensive category including any structure which could be considered a ‘dwelling house’ within the meaning of section 460.”  (Greer & Rosen, supra, pp. 13–3—13–4.)

BARRY–DEAL, Associate Justice.

SCOTT, Acting P.J., and FEINBERG, J.*, concur.