People v. O'Bryan

• Decision Date: 28 January 1985
• Docket Number: Cr. 23621
• Citation: 37 Cal.3d 841,694 P.2d 135,210 Cal.Rptr. 450
• Parties: , 694 P.2d 135 The PEOPLE, Plaintiff and Respondent, v. Jeffrey Dean O'BRYAN, Defendant and Appellant.
• Court: California Supreme Court

Page 450

210 Cal.Rptr. 450

37 Cal.3d 841, 694 P.2d 135

The PEOPLE, Plaintiff and Respondent, v. Jeffrey Dean O'BRYAN, Defendant and Appellant.

Cr. 23621.

Supreme Court of California,

In Bank.

Jan. 28, 1985.

John K. Van de Kamp, Atty. Gen., Gary R. Hahn and Edward T. Fogel, Jr., Deputy Attys. Gen., for plaintiff and respondent.

Christopher N. Heard, San Jose, and Terry L. White, Sacramento, as amici curiae on behalf of plaintiff and respondent.

BROUSSARD, Justice.

Defendant pled nolo contendere to a charge of second degree burglary involving entry into a residence, and admitted a prior conviction of first degree burglary. The sentence included a five-year enhancement under Penal Code section 667 ¹ for a prior commission of a serious felony. Defendant's appeal challenges the propriety of the enhancement.

The prosecution filed an information charging defendant with two counts of burglary. The first count asserted that on July 27, 1982, defendant "did willfully and unlawfully enter the residence ... [of] Marie Paz Estrata, with the intent to commit larceny." The second count, in identical language, charged an entry into the residence of Teresa Colleen Strom. The information further alleged that on January 29, 1980, defendant was "convicted of residential burglary ... within the meaning of Penal Code section 667(a)." ²

Defendant pled nolo contendere to count 1 of the information and admitted the alleged prior conviction. Defendant further signed a waiver form in which he acknowledged in writing that his plea and admission exposed him to a possible maximum sentence of eight years--the three-year maximum term for second degree burglary plus a five-year enhancement under section 667. The court found defendant guilty of second degree burglary, imposed a middle term of two years, and after denying a defense motion to strike, added the five-year serious felony enhancement under section 667. The prosecution then dismissed the remaining count.

Defendant now appeals from the sentence. His appeal challenges only the five-year enhancement imposed by section 667, when a defendant, previously convicted of a serious felony, is again convicted of such a crime. ³ Section 667 refers to section 1192.7, which defines serious felony to include "burglary of a residence." ( § 1192.7, subd. (c)(18).) Defendant argues that neither his present conviction nor his admitted prior conviction can be classified as a burglary of a residence.

Defendant first contends that his present conviction for second degree burglary cannot be considered a conviction of a serious felony within section 667, because entry into a residence is not an essential element of the offense. Defendant, however, pled nolo contendere to an information which alleged burglary of a residence, and in view of the enhancement provided by section 667, that allegation cannot be considered surplusage. Defendant further acknowledged that his plea exposed him to a possible sentence of eight years, a term which included the five-year serious felony enhancement. Defendant's plea under these circumstances constitutes an admission that the current burglary was a residential burglary within the meaning of section 667. (See People v. Jackson (1985) ante, 37 Cal.3d. 826, 835-836, --- Cal.Rptr. ----, --- P.2d ----.) Such an admission is sufficient to establish the residential character of the burglary. (At p. 836, 210 Cal.Rptr. 623, -694 P.2d 736.)

Defendant's prior conviction in 1980 was for first degree burglary. Section 460 as of the date of that offense defined first degree burglary as a "burglary of an inhabited dwelling house or trailer coach as defined by the Vehicle Code, or the inhabited portion of any other building, committed in the nighttime...." Defendant argues that a first degree burglary under this language could include an entry into "the inhabited portion of a non-residential building." We believe, however, that the term "residence" in section 1192.7 was intended to encompass not only dwelling houses and trailer coaches but also "the inhabited portion of any other building." Even if part of a building is used for nonresidential purposes, that part which is inhabited is a "residence" within the meaning of the serious felony enhancement. The definition of first degree burglary draws no distinction between individual dwellings and the inhabited portion of other buildings, such as hotels and apartment houses, and it would be wholly artificial to find such a distinction in the serious felony enhancement. An entry into an inhabited space is a serious felony because it presents a greater intrusion upon personal privacy, and a greater risk of violent confrontation, than does entry into an uninhabited area. (See People v. Wilson (1969) 1 Cal.3d 431, 440, 82 Cal.Rptr. 494, 462 P.2d 22.)

We find support for this interpretation in the definitional language of section 1170.95 (enacted as § 1170.8, then renumbered), enacted effective January 1, 1983. ⁴ That enactment defines residential burglary to include not only entry into an inhabited dwelling house or trailer coach, but also "the inhabited portion of any other building." Although this language cannot be applied retroactively to increase the punishment imposed on defendant under sections 667 and 1192.7 (see People v. Teron (1979) 23 Cal.3d 103, 116-117, 151 Cal.Rptr. 633, 588 P.2d 773 and cases there cited), we may properly rely upon it as a guide to interpreting what those sections meant from their inception (see Eu v. Chacon (1976) 16 Cal.3d 465, 470, 128 Cal.Rptr. 1, 546 P.2d 289). Section 1170.95 serves to confirm that the statutes draw no distinction, in terms of the residential character of a burglary, between an entry into an inhabited dwelling and one into the inhabited portion of some other building.

We conclude that the first degree burglary of which defendant was previously convicted is, as a matter of law, a "burglary of a residence" under section 1192.7. In any event, under the reasoning of People v. Jackson, supra, 835-836, --- Cal.Rptr. ----, --- P.2d ----, defendant's admission that he was convicted of a "residential burglary ... within the meaning of Penal Code section 667(a)" would suffice to establish the truth of that allegation.

Defendant's final contention, that an enhancement under section 667 must be limited to avoid a sentence of more than twice the base term, was also addressed and...