People v. O'Bryan
Decision Date | 20 January 1984 |
Docket Number | Cr. 43580 |
Court | California Court of Appeals Court of Appeals |
Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Jeffrey Dean O'BRYAN, Defendant and Appellant. |
For Opinion on Hearing, see 210 Cal.Rptr. 450, 694 P.2d 135.
Quin Denvir, State Public Defender, Richard Lennon, Deputy State Public Defender, for defendant and appellant.
John K. Van De Kamp, Atty. Gen. of State of Cal., Gary R. Hahn, Edward T. Fogel, Jr., Deputy Attys. Gen., for plaintiff and respondent.
Penal Code section 667, added as part of the Proposition 8 initiative on June 8, 1982, provides in pertinent part that:
Included within the numerous serious felonies specified in Penal Code section 1192.7 is that of "burglary of a residence." (Pen.Code, § 1192.7(c)(18).)
On August 25, 1982, an information was filed in Ventura County Superior Court accusing appellant of two counts "of the crime of violation of section 459 of the Penal Code, in that on or about July 27, 1982 ... he did willfully and unlawfully enter the residence and building occupied by [two separate victims], with the intent to commit larceny." The information further alleged as "Prior serious felony No. 1" that appellant "was on and about the 29th day of January, 1980, ... convicted of residential burglary, a felony, in violation of section 459 of the Penal Code, within the meaning of Penal Code section 667(a)."
After initially pleading not guilty to the charges and denying the prior conviction, appellant entered into a Felony Disposition Statement which provided, inter alia, that
At the hearing on this change of plea, the following transpired:
"THE COURT: The record will show that the defendant is present in CR17687, coming on at this time for change of plea.
The People appear by Mr. Janes.
If you'll arraign the defendant, please, for change of plea.
MR. JANES: Mr. O'Bryan, it's my understanding that you wish to plead nolo contendere to--may I have just a moment here?
I believe that was Count 1 of the Information against you.
That alleges that you, on the 29th day of January, 1980, in the Superior Court of the State of California for the County of Ventura, were convicted of residential burglary, a felony, in violation of Section 459 of the Penal Code, within the meaning of Penal Code Section 667(a).
Is it your desire to admit that Prior Serious Allegation?
................................................................................
How do you plead to Count 1 of the Information?
Stipulated to the second degree?
It is further alleged that you, Jeffrey Dean O'Bryan, were, on and about the 29th day of January, 1980, in the Superior Court of the State of California, for the County of Ventura, convicted of residential burglary, a felony, in violation of Section 459 of the Penal Code, within the meaning of Penal Code Section 667(a).
Do you admit Prior Serious Felony No. 1 as alleged?
Appellant was thereafter sentenced to state prison for the consecutive terms of two years on Count I, plus five years for the prior conviction.
Without otherwise contesting the matter, appellant contends on the appeal that:
1. He could not properly receive a five year enhancement for a prior residential burglary because (a) the instant felony was only for second degree burglary and thus not a serious felony, (b) the prior conviction was not necessarily for burglary of a residence, and (c) there is no crime of residential burglary which he could admit to by his plea of nolo contendere.
2. Assuming his instant conviction was properly enhanced with a prior serious felony conviction, the length of the enhancement should be only two years because otherwise the total term would exceed twice the length of the base term in contravention of Penal Code section 1170.1, subdivision (g). 1
Neither claim of error can be sustained.
Concerning the first of them, 2 what is maintained is that the initial prerequisite to application of Penal Code section 667 is a current conviction of a "serious felony," which in the case of burglary consists only of "burglary of a residence," agreeably with Penal Code section 1192.7, subdivision (c), such that the requirement is lacking here, where appellant's nolo contendere plea was stipulated to be to second degree, or non-residential, burglary. (See Pen.Code, § 460.)
Similarly, it is said, the further prerequisite found in Penal Code section 667, that the prior conviction also be for a serious felony--on the facts here, again burglary of a residence--cannot be satisfied because at the time of appellant's prior conviction for first degree burglary, that crime included not only invasions of residences, but of "inhabited portions of ... other buildings."
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