People v. Deay

• Decision Date: 20 August 1987
• Citation: 194 Cal.App.3d 280,239 Cal.Rptr. 406
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Steven Allen DEAY, Defendant and Appellant. Crim. C001267.

Page 406

239 Cal.Rptr. 406

194 Cal.App.3d 280

The PEOPLE, Plaintiff and Respondent, v. Steven Allen DEAY, Defendant and Appellant.

Crim. C001267.

Court of Appeal, Third District, California.

Aug. 20, 1987.

Certified for Partial Publication ^*.

Frank O. Bell, Jr., Public Defender, and David Y. Stanley, Deputy Public Defender, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Joel E. Carey, and Judy Kaida, Deputy Attys. Gen., for plaintiff and respondent.

LONG, ^** Associate Justice.

Following a court trial, defendant was found guilty of two counts of residential burglary (Pen.Code, § 459) ¹ and one count of unlawfully possessing a hypodermic syringe or needle (former Bus. & Prof.Code, § 4143, now Bus. & Prof.Code, § 4149), and he was further found to have suffered two prior serious felony convictions (§ 667, subd. (a)), as alleged in the information. He was sentenced to state prison for a total unstayed term of fifteen years and four months, consisting of a four-year middle term for one burglary conviction, a one-year-and-four-month unstayed consecutive term for the second burglary conviction, plus two consecutive five-year enhancements pursuant to section 667, subdivision (a). For the unlawful possession conviction, he was sentenced to time served in the county jail. A $2000 restitution fine was imposed.

On appeal, defendant contends (1) the evidence is insufficient to support one of the burglary convictions, (2) both burglary convictions must be reduced to the second degree by operation of law, (3) the sentencing court improperly imposed two section 667 enhancements for prior convictions on charges not brought and tried separately, and (4) the restitution fine is excessive. We find merit in only the third contention and shall modify the judgment accordingly. As modified, the judgment shall in all other respects be affirmed.

FACTS, DISCUSSION I ^***

II

Defendant was charged in counts I and II of the information with "RESIDENTIAL BURGLARY, in violation of Section 459 of the Penal Code," in that he unlawfully "enter[ed] the inhabited dwelling and residence" of each victim. As to each count, the court returned a finding of guilty of "residential burglary." The court did not expressly recite, however, that the findings were for burglary of the "first degree." Defendant's sentence to the four-year middle term for each count is the middle term sentence prescribed for first degree burglary. (See § 461.) Defendant contends on appeal that, because the trial court failed to recite the degree of the crimes in its finding, both burglary convictions must be reduced to the second degree by operation of law. We disagree.

Section 1157 provides: "Whenever a defendant is convicted of a crime ... which is distinguished into degrees, the jury, or the court if a jury trial is waived, must find the degree of the crime ... of which he is guilty. Upon the failure of the jury or the court to so determine, the degree of the crime ... of which the defendant is guilty, shall be deemed to be of the lesser degree." In the ordinary case, a finding that a distinguishable crime is of the first degree, if not expressly made in the findings, may not be inferred from the sum of facts found true by the trier. Under such circumstances, the degree of the crime must become the lesser by operation of section 1157. (See People v. McDonald (1984) 37 Cal.3d 351, 379-383, 208 Cal.Rptr. 236, 690 P.2d 709; People v. Flores (1974) 12 Cal.3d 85, 92-95, 115 Cal.Rptr. 225, 524 P.2d 353; People v. Beamon (1973) 8 Cal.3d 625, 629, fn. 2, 105 Cal.Rptr. 681, 504 P.2d 905; People v. Thomas (1978) 84 Cal.App.3d 281, 283-285, 148 Cal.Rptr. 532.)

At the time the offenses were committed, section 460 defined first degree burglary as including "[e]very burglary of an inhabited dwelling house or trailer coach as defined by the Vehicle Code, or the inhabited portion of any other building, is burglary of the first degree. [p] All other burglaries are of the second degree." An inhabited dwelling has been further defined to mean We see no practical difference between burglary of an inhabited dwelling house and residential burglary. With the elimination on January 1, 1983 of the requirement that a first degree burglary be committed in the nighttime, all burglaries of residences are first degree pursuant to section 460. (People v. Rivera (1984) 162 Cal.App.3d 141, 148, 207 Cal.Rptr. 756.) Further, courts have consistently analyzed first degree burglary in terms of whether the dwelling was being used as a residence. (People v. Valdez (1962) 203 Cal.App.2d 559, 563, 21 Cal.Rptr. 764; People v. Chavira (1970) 3 Cal.App.3d 988, 992, 83 Cal.Rptr. 851; People v. Cardona (1983) 142 Cal.App.3d 481, 483, 191 Cal.Rptr. 109; People v. Guthrie (1983) 144 Cal.App.3d 832, 838, 193 Cal.Rptr. 54; People v. Fleetwood (1985) 171 Cal.App.3d 982, 987, 217 Cal.Rptr. 612.) Even the common understanding of residence, which connotes a place of abode of some permanency (Smith v. Smith (1955) 45 Cal.2d 235, 239, 288 P.2d 497; Vanguard Ins. Co. v. Hartford Ins. Co. (1970) 9 Cal.App.3d 765, 768, 88 Cal.Rptr. 628), cannot be differentiated from an inhabited dwelling unit for purposes of first degree burglary.

"... currently being used for dwelling purposes, whether occupied or not." (§ 459.)

Not only has residential burglary become synonymous with first degree burglary, a prior conviction for first degree burglary is, as a matter of law, a burglary of a residence for purposes of enhancement. (People v. O'Bryan (1985) 37 Cal.3d 841, 845, 210 Cal.Rptr. 450, 694 P.2d 135; see also People v. Alfaro (1986) 42 Cal.3d 627, 632, fn. 3, 230 Cal.Rptr. 129, 724 P.2d 1154.) Notwithstanding that sentencing enhancements for prior convictions refer to criminal conduct as opposed to specific criminal offenses (People v. Jackson (1985) 37 Cal.3d 826, 832, 210 Cal.Rptr. 623, 694 P.2d 736; Pen.Code, § 1192.7(c)(18)), the fact that burglary of a residence has been defined as first degree burglary confirms that residential burglary is equivalent to a finding of burglary in the first degree.

Lest there be any doubt the trial court made a finding of first degree burglary, the trial judge's reference to the charging language of the information before imposing sentencing ensures that the court lawfully fixed the burglaries at first degree. ⁴

Reference to a specific count contained in the information is a proper method of fixing the degree of the crime charged so long as the form of the verdict clearly indicates the court's intention to find the defendant guilty of the offense with which he is charged. (People v. Bratis (1977) 73 Cal.App.3d 751, 764-765, 141 Cal.Rptr. 45; People v. Savala (1969) 2 Cal.App.3d 415, 418, 82 Cal.Rptr. 647, disapproved on other grounds in People v. Beagle (1972) 6 Cal.3d 441, 452, 99 Cal.Rptr. 313, 492 P.2d 1; People v. Reddick (1959) 176 Cal.App.2d 806, 821, 1 Cal.Rptr. 767.) Thus in People v. Anaya (1986) 179 Cal.App.3d 828, 832, 225 Cal.Rptr. 51, a jury verdict finding a burglary was committed upon an inhabited dwelling and a residence was deemed a finding of first degree burglary despite the fact that the substantive definition of the crime, rather than the label of "first degree burglary," was mentioned in the verdict form.

In this instance, the trial judge's reference to counts as charged in the information leaves no doubt that the first degree was fixed for the committed offenses. As in Anaya, the trial judge should not be faulted for referring to the substantive definition of first degree burglary. Nor was it error for the court to refer to the information as the foundation for the substantive definition of first degree burglary. Unlike People v. McDonald (1984) 37 Cal.3d 351, 379, 208 Cal.Rptr. 236, 690 P.2d 709 and People v. Williams (1984) 157 Cal.App.3d 145, 154, 203 Cal.Rptr. 562, reference to the charging document in the present case unequivocably In addition, the present case is further distinguishable from those cases where sections 1157 and 1192 required reduction of a charge to the lesser degree. Here, the trial court's intent to convict for first degree is demonstrated in a single finding and not implied by any subsequent findings, such as a finding on an enhancement (People v. Thomas (1978) 84 Cal.App.3d 281, 285, 148 Cal.Rptr. 532), or by a finding of special circumstances. (People v. Beaman, supra, 8 Cal.3d 625, 629, fn. 2, 105 Cal.Rptr. 681, 504 P.2d 905; see also People v. McDonald, supra, 37 Cal.3d 351, 382, 208 Cal.Rptr. 236, 690 P.2d 709.)

sets forth the substantive elements of the greater degree crime.

We therefore conclude that section 1157 does not operate in this case to reduce defendant's burglary convictions to the second degree. Not only was the trial court's finding of "residential burglary" equivalent to a finding of first degree burglary, but the court's additional reference to the information makes it certain that the findings were precisely set in the first degree.

III

The information alleged that defendant had been previously convicted of two serious felonies within the meaning of section 667, subdivision (a). Defense counsel stipulated to the priors, and the issue was submitted to the trial court on certified copies of pertinent court and Department of Corrections documents. Those documents disclose that, on December 29, 1982, in one proceeding, defendant pled guilty in the Redding Municipal Court to two counts of first degree burglary. The case was certified to the Shasta County Superior Court, which, on January 28, 1983, in one proceeding, entered judgment on both pleas. The trial court in this case found true both section 667 allegations and imposed two consecutive five-year enhancements. Defendant contends on appeal that one of these enhancements must be vacated because the two prior convictions were not "on charges brought and tried separately" (§ 667, subd. (a)). We agree.

The phrase "charges brought and...