People v. Alfaro

• Decision Date: 02 October 1986
• Citation: 724 P.2d 1154,42 Cal.3d 627,230 Cal.Rptr. 129
• Court: California Supreme Court
• Parties: , 724 P.2d 1154 The PEOPLE, Plaintiff and Respondent, v. Mario Piedra ALFARO, Defendant and Appellant. Crim. 25042.

Page 129

230 Cal.Rptr. 129

42 Cal.3d 627, 724 P.2d 1154

The PEOPLE, Plaintiff and Respondent, v. Mario Piedra ALFARO, Defendant and Appellant.

Crim. 25042.

Supreme Court of California,

In Bank.

Oct. 2, 1986.

Frank O. Bell, Jr., State Public Defender, under appointment by the Court of Appeal, Quin Denvir, State Public Defender, William Blum and Richard Lennon, Deputy State Public Defenders, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., John R. Gorey, Robert F. Katz and William V. Ballough, Deputy Attys. Gen., for plaintiff and respondent.

Christopher N. Heard, San Jose, as amicus curiae on behalf of plaintiff and respondent.

BROUSSARD, Justice.

In People v. Jackson (1985) 37 Cal.3d 826, 210 Cal.Rptr. 623, 694 P.2d 736 (hereafter Jackson ), we stated that in proving a prior conviction was a "serious felony" for the purpose of the five-year enhancement under Penal Code sections 667 and 1192.7, ¹ proof was limited to matters necessarily established by the prior conviction. The Court of Appeal in this case characterized Jackson 's reasoning as dictum and refused to follow it. The question before us is simply whether we should adhere to our prior decision or abandon it.

Defendant was convicted of robbery. The trial court found that he previously was convicted of two serious felonies--a 1974 conviction involving burglary of a residence and a 1977 conviction for robbery--and imposed two 5-year enhancements pursuant to sections 667 and 1192.7. The Court of Appeal affirmed. Defendant petitioned for hearing, challenging (a) the trial court's ruling that under article I, section 28 of the California Constitution it had no discretion to exclude the use of the prior convictions for purpose of impeachment, and (b) the court's reliance upon the 1974 burglary conviction to impose a serious felony enhancement. We granted a hearing and retransferred the case to the Court of Appeal for reconsideration in light of People v. Castro (1985) 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111. The Court of Appeal again affirmed the conviction and sentence. We granted review, specifying in our order that "[t]he issues to be argued before this court shall be limited to what evidence may be considered in determining whether a prior felony conviction involved burglary of a residence. (Rule 29.2, subd. (b), Cal. Rules of Court; see People v. Jackson (1985) 37 Cal.3d 826 [210 Cal.Rptr. 623, 694 P.2d 736] )"

This is one of the first cases in which the court has utilized its authority under new rule 29.2(b), which provides that "[a]fter granting review of a decision of a Court of Appeal, the Supreme Court may specify the issues to be argued. Unless otherwise ordered, briefs on the merits and oral argument shall be confined to the specified issues and issues fairly included in them." Our order granting review cited subdivision (b), and limited argument to the question of what evidence may be considered in determining whether a prior conviction involved burglary of a residence. Thus questions relating to the use of prior convictions for impeachment remain in this case, but were not briefed or argued here. Such questions have since been resolved in People v. Collins (1986), ante, page 378, which was pending before this court when we granted review in the present case. Therefore, after resolving the issue argued here--the proof of a prior conviction for residential burglary--we will retransfer the case to the Court of Appeal for further proceedings in light of Collins.

On September 7, 1982, Robert Massey, a driver for a medical oxygen delivery service, was confronted by defendant while making a delivery. Defendant asked if the oxygen on the delivery truck was valuable and whether Massey had any money. Defendant then claimed to have a knife and demanded that Massey hand over his watch and money. Massey gave defendant his watch and money--one penny. Defendant struck Massey several times and left with the loot.

Defendant was charged with robbery. The information further alleged that defendant previously had been convicted of two serious felonies, a 1977 robbery and a 1974 "burglary of a residence." Defendant pled not guilty and denied the alleged prior offenses.

The court bifurcated trial on the current robbery charge and the enhancements. Prior to the robbery trial, defendant moved to bar use of the prior convictions for impeachment. The court deferred ruling until the close of the prosecution case, then denied the motion, stating that under article I, section 28 of the California Constitution it had no authority to preclude use of prior convictions for impeachment. Defendant then declined to testify. The jury found him guilty of robbery.

Defendant waived jury trial on the enhancements. The prosecution introduced a copy of the information in the 1974 burglary conviction, which charged defendant with burglary in that "he entered the house of Shelby Gilbert, located at 111 Bernarda Court, Oxnard, California, with intent to commit theft." A minute order showed that defendant pled guilty to burglary, "a violation of section 459 of the Penal Code as set forth in the Information." ² Similar documents demonstrated defendant's 1977 robbery conviction. The trial court found the enhancements true, and sentenced defendant to the middle term of three years for robbery, plus an additional five years for each of the serious felony enhancements.

Section 667, enacted as part of Proposition 8 on June 8, 1982, provides for a five-year enhancement for any person convicted of a serious felony who previously has been convicted of a serious felony. Subdivision (d) of section 667 defines "serious felony" by reference to section 1192.7, subdivision (c); that section lists 25 items including robbery, defendant's current offense, and "burglary of a residence." Robbery is a specific crime, with specifically defined elements; a conviction for robbery unquestionably establishes guilt of that crime. The problem in this and related cases is that "burglary of a residence" is not a specific crime; depending upon the date and degree of the burglary, a conviction may not demonstrate that the defendant entered a residence. (See Jackson, 37 Cal.3d pp. 830-831, fn. 2, 210 Cal.Rptr. 623, 694 P.2d 736; People v. O'Bryan (1985) 37 Cal.3d 841, 844-845, 210 Cal.Rptr. 450, 694 P.2d 135.) ³

We addressed this problem in Jackson. In that case the defendant pled guilty to burglary, admitting that it involved entry into a residence, and further admitted a prior conviction for "residential burglary." On appeal he challenged the serious felony enhancement, arguing that it applied only to persons convicted of a specific crime of burglary of a residence, and that no such crime existed. We rejected that argument, observing that while some provisions in section 1192.7 described specific crimes, others described conduct that did not correspond precisely to the elements of any existing offense. We construed such provisions "as referring not to specific criminal offenses, but to the criminal conduct described therein, and applicable whenever the prosecution pleads and proves that conduct." (37 Cal.3d at P. 832, 210 Cal.Rptr. 623, 694 P.2d 736.)

The defendant in Jackson also argued that his admission and plea of guilty were insufficient to prove that either his prior or present burglary involved entry into a residence. In support of this proposition he cited People v. Crowson (1983) 33 Cal.3d 623, 190 Cal.Rptr. 165, 660 P.2d 389 (hereafter Crowson ), and our opinion turned to examine that case.

In Crowson, defendant's sentence had been enhanced under section 667.5 for a prior federal prison term for conspiracy. Under section 667.5 the prior term could be used to enhance only if the offense "includes all of the elements of the particular felony as defined under California law." Because federal law, as found in Crowson, did not include an overt act as an element of the crime, the court held the enhancement improper. (Crowson, pp. 632-634, 190 Cal.Rptr. 165, 660 P.2d 389; see Jackson, 37 Cal.3d at p. 833, 210 Cal.Rptr. 623, 694 P.2d 736.) The Attorney General argued in Crowson that even if federal conspiracy law did not require an overt act, the indictment to which defendant pled guilty specifically alleged two overt acts. We replied that " 'if, as we have concluded, proof of an overt act was not a required element of the federal offense, the allegations to which the People refer were entirely immaterial surplusage, and defendant would have had no reason or incentive to contest them in the federal proceeding. In general, the doctrine of collateral estoppel regards as conclusively determined only those issues actually and necessarily litigated in the prior proceeding.... If proof of an overt act was not required to sustain a conviction under the federal statute, neither a guilty verdict after a jury trial nor a plea of guilty may accurately be viewed as establishing that such an act occurred, regardless of the allegations of the charging pleading....' " (Crowson, 33 Cal.3d at p. 634, 190 Cal.Rptr. 165, 660 P.2d 389, quoted in Jackson, 37 Cal.3d at p. 834, 210 Cal.Rptr. 623, 694 P.2d 736.)

Concluding its review of Crowson, the Jackson opinion found that "Crowson established two propositions relevant to the present case: (1) that proof of a prior conviction establishes only the minimum elements of the crime, even if the charging pleading contained additional, superfluous allegations; and (2) that the prosecution cannot go behind the record of the conviction and relitigate the circumstances of the offense to prove some fact which was not an element of the crime." (Jackson, p. 834, 210 Cal.Rptr. 623, 694 P.2d 736; accord, People v. Thomas (1986) 41 Cal.3d 837, 840, 226 Cal.Rptr. 107, 718 P.2d 94.)

These principles did not bar proof that Jackson's current burglary involved entry into a residence; the allegations charging residential burglary were not superfluous, but...