PEOPLE v. REYNOLDS (1986)

OPINION

Defendant William Osborn Reynolds appeals from a judgment sentencing him to a total of 15 years in state prison for convictions of burglary and robbery.   On appeal, his contentions are:  (1) the trial court's failure to prohibit impeachment by his prior convictions constituted reversible error;  (2) the court's failure to stay the sentence on the robbery conviction violated the statutory proscription of double punishment;  (3) the trial court erred in enhancing his sentence by reason of a previous burglary conviction;  and (4) the court inadequately explained its sentencing choices.   We affirm the judgment.

FACTS

In the afternoon of September 28, 1982, Joan Durbish and Carolyn Frost met to take their children on a walk through their neighborhood.   As they were setting out, Mrs. Durbish observed an unfamiliar vehicle parked in front of the house of her neighbors, the Truslows.   Mrs. Durbish watched the defendant get out of the vehicle and pass through a gate into the Truslows' side yard.   Another man remained in the vehicle.

Both Mrs. Durbish and Mrs. Frost suspected defendant of beginning a burglary.   They told their neighbor of their suspicions and he agreed to call the police.   The women and their children then went on their walk.

When they returned about 15 minutes later, they saw defendant come out of Truslows' side yard.   He carried a television set in his arms.   He placed the set in the vehicle and drove off.   The two women approached the house and observed a pillowcase on the ground near the house.   A large plastic water bottle containing coins protruded from the pillowcase.   The police arrived, learned that defendant had left, and immediately drove away in the same direction.

A few moments later the defendant returned in his vehicle.   As he approached the pillowcase, Mrs. Frost stood between defendant and the pillowcase, and told him not to take the pillowcase.   Defendant pushed Mrs. Frost by the shoulders so that she stumbled away.   He then picked up the pillowcase, carried it to his car, and drove away.

Defendant was later arrested and charged with burglary (Pen. Code, § 459 1 ) and robbery (§ 211).   For the purposes of sentence enhancement under section 667, defendant was charged with two prior burglaries (§ 459) and a robbery (§ 211).   He was also charged with a previous escape conviction.  (§ 4532, subd. (b).)

Before trial, defendant moved to exclude use of his prior robbery and burglary convictions for impeachment.   The court denied the motion.   On the advice of his counsel, defendant did not testify at trial.   He made no offer of proof as to the substance of what his testimony would be, in camera or otherwise.   A jury convicted him of both burglary and robbery.   In a court trial each allegation of prior conviction was found to be true.

Defendant was sentenced to 15 years in state prison.   The court used as the base term the four-year middle term for the first-degree burglary conviction, added a consecutive term of one year (one-third the middle term) for the robbery conviction, and enhanced the sentence by ten years for the prior serious felony convictions, five years each for the prior robbery and the prior residential burglary.  (§ 667.)

DISCUSSION

I. Impeachment

Defendant contends the trial court's pretrial ruling that evidence of his prior burglary and robbery convictions could be introduced for impeachment purposes should he testify constituted prejudicial error and requires reversal.   We do not agree.

At the time of the current offenses, Proposition 8 had been added to article I, section 28, to the California Constitution.   Subdivision (f) of section 28 provides:  [a]ny prior felony conviction of any person in any criminal proceeding ․ shall subsequently be used without limitation for purposes of impeachment ․ in any criminal proceeding.”   Subdivision (d) states in part:  “[n]othing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay or Evidence Code, Sections 352, 782 or 1103․”

Subsequently, in People v. Castro (1985) 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111, the California Supreme Court held that a prior felony conviction may be introduced for impeachment purposes if it involves “moral turpitude” (id., at p. 306, 211 Cal.Rptr. 719, 696 P.2d 111) but that the adoption by the people of Proposition 8 did not eliminate the trial court's authority under section 352 of the Evidence Code to exclude evidence of a prior conviction if its probative value is outweighed by its unduly prejudicial effect.  (Id., at pp. 306, 312, 316–317, 211 Cal.Rptr. 719, 696 P.2d 111.)

 Here, the trial court apparently believed it was without discretion to exclude evidence of the prior convictions for impeachment purposes.   In retrospect, under People v. Castro, supra, the trial court's failure to exercise its discretion constituted error.   However, error alone does not require reversal of a judgment.   An appellant must show that the error was prejudicial, resulting in a miscarriage of justice.   In the instant case we conclude the error was not prejudicial for three separate, alternative reasons.

 First, because defendant did not testify or even make an offer of proof as to the substance of what his testimony would have been, in camera if necessary, he is foreclosed from asserting the court's error in failing to exercise its discretion was prejudicial.

Under similar circumstances in Luce v. United States (1984) 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443, the United States Supreme Court recently held that a defendant who did not testify at trial was not entitled to review of the trial court's in limine ruling denying his motion to exclude use of his prior convictions for impeachment purposes.   The court stated:  “A reviewing court is handicapped in any effort to rule on subtle evidentiary questions outside a factual context.   This is particularly true under Rule 609(a)(1) which [like Cal.Evid. Code, § 352] directs the court to weigh the probative value of a prior conviction against the prejudicial effect to the defendant.   To perform this balancing, the court must know the precise nature of the defendant's testimony, which is unknowable when, as here, the defendant does not testify.   [¶] Any possible harm flowing from a district court's in limine ruling permitting impeachment by a prior conviction is wholly speculative.”  (Luce v. United States, supra, 469 U.S. ––––, ––––, 105 S.Ct. 460, 463, 83 L.Ed.2d 443, 447, fns. omitted.)   To hold otherwise would permit a defendant, simply by making a motion to exclude prior convictions, to “plant” reversible error in the record in the event of a conviction.   It was this fundamental sort of “built in” reversal the Castro court held Proposition 8 was designed to abrogate.  (Castro, supra, 38 Cal.3d at p. 312, 211 Cal.Rptr. 719, 696 P.2d 111.)

 Secondly, the evidence of defendant's guilt was overwhelming.   It was undisputed defendant was at the scene of the burglary.   Three witnesses, Mrs. Frost, Mrs. Durbish, and George Palmer, saw defendant by the residence carrying the property stolen from the house.   Defendant's counsel presented the substance of the defense in his argument, i.e., that at most defendant had committed a battery on Mrs. Frost and had received property someone else had taken from the house.   However, defendant's forcibly taking the pillowcase full of coins from Mrs. Frost dispelled any semblance of doubt that might otherwise have existed as to his felonious intent.   Under the circumstances, it is not reasonably probable the jury would have reached a different verdict even if evidence of the prior convictions had been ruled inadmissible and defendant had testified.

 Finally, there is no reasonable probability that had the court exercised its discretion it would have excluded evidence of the prior convictions.   Both robbery and burglary are crimes involving moral turpitude.  (See In re Hurwitz (1976) 17 Cal.3d 562, 131 Cal.Rptr. 402, 551 P.2d 1234;  Castro, supra, 38 Cal.3d at p. 315, fn. 10, 211 Cal.Rptr. 719, 696 P.2d 111.)   The prior convictions were suffered between 1978 and 1981 and were thus not remote.  (See People v. Condley (1977) 69 Cal.App.3d 999, 1016, 138 Cal.Rptr. 515.)   The convictions for both robbery and burglary were probative of honesty, trustworthiness and truthfulness and were thus highly relevant to the issue of credibility.  (See People v. Condley, supra, 69 Cal.App.3d at pp. 1016–1017, 138 Cal.Rptr. 515.)   Although the prior convictions and the charged offenses were the same, the Castro opinion makes clear that “[t]he intention of the drafters ․ was to restore trial court discretion ․ and to reject ․ rigid, black letter rules of exclusion․”  (38 Cal.3d at p. 312, 211 Cal.Rptr. 719, 696 P.2d 111.)   Thus the identity of the prior crimes and those charged was merely one factor the trial court could have considered.   In light of the strong probative value of the several prior convictions on the issue of credibility, it is probable the trial court would have exercised its discretion to permit the priors to be introduced for purposes of impeachment.   Because the trial court had no information as to what defendant's testimony might be, there was no rational basis upon which the court could find that defendant's testimony was critical.   Thus, applying the guideline factors enumerated in People v. Beagle (1972) 6 Cal.3d 441, 452–453, 99 Cal.Rptr. 313, 492 P.2d 1, there is little likelihood the trial court would have ruled the prior convictions inadmissible if it had exercised its discretion.

II. Double Punishment

Defendant contends the trial court's failure to stay the imposition of sentence on the robbery violated Penal Code section 654's proscription of double punishment.

 Section 654 states that:  “An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one․”  California law thus bars multiple punishment for a single act or omission even though that act violates more than one statute, and therefore constitutes more than one crime.   Where the same conduct gives rise to two charges, the prosecution may seek conviction on both crimes, but only one may be punished.  (People v. Beamon (1973) 8 Cal.3d 625, 636–639, 105 Cal.Rptr. 681, 504 P.2d 905.)

 The double punishment proscription applies also to criminal conduct involving several acts which were part of one continuous transaction.  (Neal v. State of California (1960) 55 Cal.2d 11, 19, 9 Cal.Rptr. 607, 357 P.2d 839.)  “The divisibility of a course of conduct depends upon the intent and objective of the actor, and if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one.   [Citations.]”  (People v. Bauer (1969) 1 Cal.3d 368, 376, 82 Cal.Rptr. 357, 461 P.2d 637.)

 The trial court's imposition of sentence on both the burglary and the robbery import factual determinations that defendant's objective was not one but several and that his course of conduct was divisible rather than indivisible.   Not only are those determinations supported by substantial evidence, they are probably correct as a matter of law.   The conduct constituting the burglary was separated in time from the conduct constituting the robbery, and the temporally discrete conduct was directed at two different persons.   Nothing in the nature of the burglary impelled the later robbery.   It is not enough to say that in each instance defendant's intent was to take the property of or in the possession of another.

The trial court acted with propriety in sentencing defendant for both the burglary and robbery convictions.

III. Serious Felony Enhancements

Section 667 provides that a five-year “enhancement” be added to the term of imprisonment of one convicted of a serious felony where such person previously has been convicted of a serious felony.   The current burglary and robbery, as well as the prior robbery are by statutory definition serious felonies.  (§§ 667, subd. (d), 1192.7, subds. (c)(18), (c)(19).)

Defendant contends the section 667 enhancement for the 1978 residential burglary conviction is erroneous, because the record of conviction does not show the residential nature of the burglary (§§ 667, 1192.7, subd. (c)(18)), and the People may not go behind the record to prove such a fact.   Defendant's contention as to the record of conviction is incorrect.

On the court trial with respect to the prior serious felony convictions, the People introduced and the court considered several items of documentary evidence including the December 5, 1977, complaint charging defendant with a violation of section 459 of the Penal Code and the reporter's transcript of the proceedings in which defendant pleaded guilty on Friday, December 16, 1977, the time set for preliminary hearing.   Defendant mistakenly relies on People v. Jackson (1985) 37 Cal.3d 826, 210 Cal.Rptr. 623, 694 P.2d 736, for the proposition that these documents, and particularly the transcript of the plea, are “extrinsic” to the record of conviction and, as such, cannot be used to prove the residential nature of the burglary.   Not so.   The relevant issue in Jackson was not whether pleadings and admissions are part of a record of conviction, which was assumed, but to what extent the language in those documents can be used to establish the nature of the underlying offense.   As the court said in Jackson:  “The record of a [pre-Proposition 8] conviction for second degree burglary would not prove entry into a residence, even if the pleadings included superfluous allegations to that effect.”  (Id., at p. 836, 210 Cal.Rptr. 623, 694 P.2d 736, emphasis added.)

 Rule 33 of the California Rules of Court provides in relevant part:  “If the appeal is taken by the defendant from a judgment of conviction ․ the record on appeal, except as stated in this rule shall include the following (which shall constitute the normal record):  [¶] (1) A clerk's transcript, containing copies of ․ (b) the indictment, information or accusation with any amendments ․ (g) the judgment or order appealed from and any abstract of judgment—commitment ․ [¶] (2) A reporter's transcript of (a) the oral proceedings ․ including ․ proceedings at the time of sentencing ․ (b) the oral proceedings ․ on the entry of any plea other than a plea of not guilty;  (c) any oral opinion of the court.”   Thus, the complaint and transcript of the plea were part of the record of the 1978 burglary conviction, and their receipt into evidence and consideration did not involve any retrial of the earlier charges in any sense of the word.

The real question in this case is whether the case is controlled by the language and reasoning of the Jackson decision or whether it is sufficiently distinguishable factually to support a different conclusion.   We believe it is distinguishable.

The basis for the court's conclusion in Jackson that the record of a conviction for second degree burglary would not prove entry into a residence even if the pleadings included superfluous allegations to that effect was that, having no reason to contest the superfluous allegations, the defendant might well have pled guilty without bothering to make the record reflect that the burglary was not a residential burglary and, further, that a judgment of conviction of second degree burglary establishes only the existence of the elements of that offense, which in 1978 might or might not have included the entry of a residence.  (Jackson, supra, 37 Cal.3d at p. 834, 210 Cal.Rptr. 623, 694 P.2d 736.)

In the case at bench, however, in respect to this issue the court had before it more than the accusatory pleading and more than just the judgment or abstract of judgment;  it had before it the transcript of the proceedings at which the court accepted defendant's guilty plea.   The transcript shows that at the time set for preliminary hearing, defendant, represented by the Assistant Public Defender of Sacramento County, indicated his desire to enter a plea of guilty to the burglary charge whereupon, in relevant part, the following occurred:

“MAGISTRATE:  Mr. Reynolds, you have heard what your attorney has indicated that it is your desire at this point to enter a plea of guilty to the charge as contained in Count One with a promise that you will not be sent to state prison at the outset.   Is that what you wish to do?

“DEFENDANT:  Yes, sir.

“․

“MAGISTRATE:  Based upon what you have indicated to the Court, the Court finds you understand the nature of the charges, how they apply to your particular situation, that you understand what is necessary to prove this charge against you and that you are entering this plea of guilty freely and voluntarily because in fact you are guilty and for no other reason;  is that correct?

“DEFENDANT:  Yes, sir.

“MAGISTRATE:  Then to the charge of violating Section 459 of the Penal Code that occurred on December 1st, 1977, in the County of Sacramento wherein it is alleged you did then and there before the filing of this complaint willfully, unlawfully and feloniously enter a residence located at 6121 Fordham occupied by Larry Oatfield (phonetic) with the intent to commit larceny, to that charge, how do you plead?

“DEFENDANT:  Larceny?

“MAGISTRATE:  Larceny is the same as theft.

“DEFENDANT:  I thought it was trying to burn the place up.

“MAGISTRATE:  No, that's arson.   To that charge, how do you plead, guilty or not guilty?”

“DEFENDANT:  Guilty.

“MAGISTRATE:  A plea of guilty to violation of Section 459 of the Penal Code will be entered.

“The factual basis for the entry of the plea is what, you entered into the residence at 6121 Fordham with the intent to commit theft therein?

“MR. DeVOE [defense counsel]:  On entry he tripped a burglary alarm.

“DEFENDANT:  Yes.

“MAGISTRATE:  The Court finds a factual basis for the entry of the plea.”

We recognize that insofar as the elements of the charge of violating Penal Code section 459 were concerned, the fact that the structure entered was a residence was not an essential part of the charge, and had defendant done no more than merely answer “Guilty” when the charge was read to him from the complaint, we would agree that the rationale and language of the court in Jackson would probably be controlling.   However, here the court did more than merely read the charges to defendant and defendant did more than merely answer “Guilty.”   After a question was raised, which we shall discuss in a moment, the court again specifically asked defendant:  “The factual basis for the entry of the plea is what[?], you entered into the residence at 6121 Fordham with the intent to commit theft therein?”   And defendant answered, “Yes.”   Defendant's attorney added:  “On entry he tripped a burglary alarm.”   Thus, the court was insistent upon placing on the record a specific factual basis for the plea, and the basis, twice affirmed by defendant, was that he entered a residence at a specific address with the intent to commit theft.

We observe additionally that the record shows defendant was neither inexperienced nor a shrinking violet.   He asked an intelligent question showing considerable knowledge in respect to the sentencing possibilities and indeed questioned the court's recitation that the offense was the entry of a specific residence with the intent to commit larceny.   Notably, however, defendant did not question the fact that the structure was a residence but questioned the nature of the intent with which he was alleged to have entered.   Had defendant any question about the residential nature of the structure, it appears he would certainly have mentioned it.   In addition, from his comments it appears that defendant's counsel was familiar with the factual details, and it seems likely he would have raised some question also had there been one.

 We conclude the record of the 1978 burglary conviction demonstrates that the burglary was of a residence and that the court properly imposed a serious felony enhancement on account of it.

IV. The Sentence

Defendant contends the trial court failed to state adequate reasons for denying probation and imposing consecutive sentences.   Our review of the record discloses the contrary.

 Defendant notes that a statement of reasons for any sentencing choice is required by section 1170, subdivision (c).   The sentencing judge is required to state in simple language the factor or factors that support the exercise of discretion (Cal. Rules of Court, rule 443).   The denial of probation is a sentencing choice which requires such a statement.  (People v. Ramos (1980) 106 Cal.App.3d 591, 598–599, 165 Cal.Rptr. 179;  Cal. Rules of Court, rule 405, subd. (f).)

“The objective [of a statement of reasons] is meaningful review of the exercise of discretion by the trial court.”  (People v. Blessing (1979) 94 Cal.App.3d 835, 838, 155 Cal.Rptr. 780.)   Although the trial court provided no explicit statement of reasons, our ability to review the decision here is not impaired by the failure of the trial court to make a specific statement of reasons for not granting probation.

California Rules of Court, rule 414, sets forth the criteria affecting the grant or denial of probation.   Included among the relevant factors relating to the defendant are the defendant's prior record of criminal conduct, whether the record indicates a pattern of regular or increasingly serious criminal conduct, and the defendant's status on probation or parole.   The rule also lists the danger of defendant's addiction to drugs as a relevant factor (rule 414, subd. (d)(6)).   Defendant was to be sentenced for the commission of two serious felonies.   In addition, the record before the trial court showed that he had been convicted of six prior felonies and was on parole at the time of the instant offenses.   The trial court had read the probation report which set forth defendant's six prior felony convictions and his parole violation and which pointed out the increasing seriousness of defendant's crimes and his drug addiction.   Realistically, probation was never a serious possibility.

 Further, the court took note of circumstances in aggravation when it imposed consecutive terms for the burglary and robbery.   Reasons for imposing an aggravated term implicitly include reasons for denying probation.   (People v. Kellett (1982) 134 Cal.App.3d 949, 961, 185 Cal.Rptr. 1;  People v. West (1980) 107 Cal.App.3d 987, 995, 165 Cal.Rptr. 24.)   The same logic applies where the sentence choice is consecutive sentences.

 Defendant also challenges the court's statement of reasons for imposing consecutive terms.   The error alleged here is that the court stated the reason for consecutive sentences as deriving from rule 425, subdivision (a)(5), that the convictions were numerous.   It is apparent that the court intended reference to the number of defendant's prior convictions, properly a factor under a different subsection of the same rule (rule 425, subd. (b);  rule 421, subd. (b)).

Even if there were some error, it is clear that “[f]ailure to state the reasons [for a consecutive sentence] is not prejudicial error per se.”   (People v. Preyer (1985) 164 Cal.App.3d 568, 577, 210 Cal.Rptr. 807, applying standard articulated in People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)   Numerous reasons for imposing consecutive sentences appear;  in fact this record overwhelmingly supports that sentencing decision, and there is no reasonable probability defendant's sentence would be altered if the case were remanded for resentencing.  (See People v. Dunnahoo (1984) 152 Cal.App.3d 561, 579, 199 Cal.Rptr. 796.)

Finally, while this appeal was pending, the Supreme Court filed its opinion in People v. Fritz (1985) 40 Cal.3d 227, 219 Cal.Rptr. 460, 707 P.2d 833).   Fritz held that a trial court retains its power to strike a prior 667 conviction under section 1385.   However, our review of the present record persuades us that Fritz does not require a remand in this case.   In Fritz the court grounded its conclusion on a reiteration of the principle explained in People v. Williams (1981) 30 Cal.3d 470, 179 Cal.Rptr. 443, 637 P.2d 1029.   In Williams the court held that, absent a clear expression of legislative intent, a sentencing statute would not be construed to abrogate a trial court's power to strike under section 1385.  (Id., at p. 489, 179 Cal.Rptr. 443, 637 P.2d 1029.

 The case at bench lacks any indication of the factual predicate to the holding in Fritz.   There, the record “indicate[d] that the trial court believed that imposition of a consecutive five year sentence for the serious felony enhancement was mandatory.”  (Fritz, supra, 40 Cal.3d at p. 229, 219 Cal.Rptr. 460, 707 P.2d 833.)   The record here discloses no such misapprehension;  the record is barren of any suggestion that the trial court believed its discretion was constrained.   Sentencing in this case took place in 1984, long after publication of the Williams affirmation of the trial court's discretion to strike and it is presumed the trial court was aware of its authority to strike the priors.

Disposition

The judgment is affirmed.

I concur in the judgment to the extent it affirms defendant's convictions of burglary and robbery.   I likewise concur in the majority's conclusion that the trial court acted properly in sentencing defendant for both the burglary and robbery convictions and in making those sentences consecutive.

I dissent, however, to the extent the judgment affirms the section 667 enhancement based upon the 1978 second degree burglary conviction.

In People v. Jackson (1985) 37 Cal.3d 826, 836, 210 Cal.Rptr. 623, 694 P.2d 736, the California Supreme Court stated:  “The record of a [pre-Proposition 8] conviction for second degree burglary would not prove entry into a residence, even if the pleadings included superfluous allegations to that effect. ” (Emphasis added.)

Defendant's second degree burglary conviction is a pre-Proposition 8 conviction.   The pleadings included the superfluous allegation that the defendant entered “a residence located at 6121 Fordham occupied by Larry Oatfield with the intent to commit larceny.”

The majority's conclusion that the record in this case presents facts that distinguish it from the superfluous allegation defect is based upon two circumstances:  to wit, 1. the fact that defendant questioned the meaning of the word “larceny,” and 2. the court's repetition of the charge in establishing the factual basis for the plea.

In my opinion the allegation would have been just as superfluous if the word “theft” had been substituted for the word “larceny” in the pleading.   Moreover, defendant's inquiry regarding the meaning of “larceny” gave the defendant no more reason to contest the superfluous allegation that the entry involved a residence than he would have had if he had known the meaning of the word and remained silent.

Neither am I persuaded that the court's reiteration of the charge, substituting the word “theft” for “larceny” in establishing a factual basis, rendered the allegation any less superfluous.   Surplusage does not change by recital.   The defendant would have no more reason to make the record reflect that the burglary was not a residential burglary for purposes of answering “yes” to the restatement of the charge than he would in pleading “guilty” in response to the reading of the charge.

The record reflects that the reason for the plea was the promise that the defendant would “not be sent to state prison at the outset.”   It seems rather clear that unless the residential character of the burglary would have enhanced the penalty or affected his eligibility for probation, the defendant would have had no reason to be concerned about the site of the theft.

Accordingly, I would modify the judgment by striking the enhancement for the second degree burglary and affirm the judgment as modified.

FOOTNOTES

FN1. All statutory references are to the Penal Code unless otherwise indicated..  FN1. All statutory references are to the Penal Code unless otherwise indicated.

KAUFMAN, Acting Presiding Justice.

McDANIEL, J., concurs.