People v. Ellis

• Decision Date: 05 October 1987
• Docket Number: No. C001374,C001374
• Citation: 195 Cal.App.3d 334,240 Cal.Rptr. 708
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Diane Louise ELLIS, Defendant and Appellant.

Page 708

240 Cal.Rptr. 708

195 Cal.App.3d 334

The PEOPLE, Plaintiff and Respondent, v. Diane Louise ELLIS, Defendant and Appellant.

No. C001374.

Court of Appeal, Third District, California.

Oct. 5, 1987.

R. Charles Johnson, San Anselmo, under appointment by the Court of Appeal, for defendant and appellant

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Michael T. Garcia, Shirley A. Nelson and Wanda Hill Rouzan, Deputy Attys. Gen., for plaintiff and respondent.

SIMS, Associate Justice.

Penal Code section 667, subdivision (a) provides for imposition of a five-year enhancement where a defendant has been previously convicted "of any offense committed in another jurisdiction which includes all of the elements of any serious felony, ..." (All further references to statutes are to the Penal Code unless otherwise indicated.) In this case, we consider whether a defendant, as part of a plea bargain, can lawfully admit that a prior conviction for federal bank robbery is a serious felony even though it does not include all the elements of any serious California felony as a matter of law. We conclude People v. Jackson (1985) 37 Cal.3d 826, 210 Cal.Rptr. 623, 694 P.2d 736 does not allow a defendant to admit in the trial court that a non-California offense qualifies as a serious felony when, as a matter of law, it does not. However, we further conclude defendant is estopped to urge the error on the record before us.

PROCEDURAL BACKGROUND

Defendant was charged with one count of residential burglary (§ 459), four felony counts arising out of the thefts of vehicles (§§ 487, subd. 3., 496, 666, and Veh.Code, § 10851), and eight counts of passing bad checks (§ 470), all offenses having occurred in February 1985. The information further alleged defendant had suffered a 1968 serious felony conviction for federal bank robbery, "within the meaning of" sections 667 and 1192.7, subdivision (c).

Pursuant to negotiation, defendant pled guilty to first degree residential burglary (count one) and to vehicle theft (count five), and admitted the prior serious felony conviction. In exchange, the prosecution agreed to dismiss the remaining 11 counts upon the condition that the bad-check counts could be considered at sentencing. ¹ It was further agreed that defendant would receive no more than nine years in prison.

Before the sentencing hearing, defendant moved to strike the prior, arguing (1) under People v. Leever (1985) 173 Cal.App.3d 853, 219 Cal.Rptr. 581 federal bank robbery is not a "serious felony" within the meaning of sections 667 and 1192.7, subdivision (c)(19) because it does not contain all the elements of robbery in California; and (2) the court should exercise its discretion to strike the prior (see People v. Fritz (1985) 40 Cal.3d 227, 219 Cal.Rptr. 460, 707 P.2d 833) because it was 18 years old. At sentencing, defendant conceded that her motion based on Leever was nonmeritorious and that she could lawfully admit the prior serious felony. The court declined to strike the prior and sentenced defendant to nine years in state prison, a term that included five years for the prior serious felony. The remaining 11 counts were dismissed in accordance with the bargain. This appeal followed.

On appeal, defendant contends the five-year term for the prior serious felony must be stricken because (1) her admission of the prior was fatally defective in that she admitted having been previously convicted of a prior felony under a federal statute that in fact proscribed no criminal conduct of any kind and (2) her prior conviction for bank robbery does not qualify as a serious felony as a matter of law.

DISCUSSION

I

We shall treat the appeal as a petition for writ of habeas corpus.

Defendant has not obtained a certificate of probable cause for her appeal as required by Penal Code section 1237.5. Her contentions attack the validity of her

                plea and are not reviewable on appeal in the absence of such a certificate.  (People v. Arwood (1985) 165 Cal.App.3d 167, 172, 211 Cal.Rptr. 307.)   However, since defendant contends the court was without jurisdiction to impose the serious felony enhancement, and since such an assertion is ordinarily cognizable upon a petition for writ of habeas corpus, in the interest of judicial economy we shall treat the appeal as a petition for writ of habeas corpus and reach the merits.  (Id., at p. 173, 211 Cal.Rptr. 307;  see People v. Jerome (1984) 160 Cal.App.3d 1087, 1094-1096, 207 Cal.Rptr. 199.)
                

II

The serious felony term need not be stricken because the wrong federal statute was pleaded in the information.

Defendant contends the serious felony term must be stricken because defendant's admission of the prior serious felony was fatally defective.

When defendant entered her plea in open court the following colloquy occurred:

"THE COURT: And it is alleged that there is a prior conviction on the 4th day of October, 1968, in the U.S. District Court of the Eastern Judicial District of the State of California, in which you were convicted of a serious felony, robbery, in violation of Section 18 U.S.C. 4208, subsection B, within the meaning of Penal Code Section 667 and 1192.7, subsection C [sic], making that a five-year prior.

"Do you admit or deny that?

"THE DEFENDANT: I admit it." (Emphasis added.)

The statute for which defendant admitted having suffered a prior conviction, 18 U.S.C. § 4208(b), is a federal statute setting forth procedures and time limits governing the administrative process of granting or denying parole to a prisoner. It is not a penal statute and does not purport to describe criminal conduct.

Defendant asserts the incorrect statutory reference requires the vacation of her plea. We cannot agree.

Defendant expressly admitted she was previously convicted of robbery in federal court. The error in her admission of the prior offense is traceable to the information, which pled the wrong section within title 18 of the United States Code (the correct section, as defendant's attorney admitted in the trial court, was section 2113(a), bank robbery).

The pleading error does not require vacation of the admission. As our Supreme Court has recently noted, the allegations of the information, rather than the enumeration of a specific statutory reference or definition, determine what offenses are charged. (People v. Thomas (1987) 43 Cal.3d 818, 826, 239 Cal.Rptr. 307, 740 P.2d 419.) An erroneous reference to a statute in a pleading is of no consequence provided the pleading adequately informs the accused of the act he is charged with having committed. (Id., at p. 827, 239 Cal.Rptr. 307, 740 P.2d 419; Isaac v. Superior Court (1978) 79 Cal.App.3d 260, 262, 146 Cal.Rptr. 396.) Such is the case here.

III

A defendant cannot lawfully admit in the trial court that a felony committed in another jurisdiction includes all of the elements of a California serious felony when, as a matter of law, it does not. However, on the record presented, defendant is estopped to complain of the error.

Defendant contends the five-year serious felony term must be stricken, leaving the rest of her sentence intact, because the elements necessary to constitute the serious felony of bank robbery are not the same as the elements of the California crime of robbery. We agree with the diagnosis but not with the cure.

We have noted subdivision (a) of section 667 provides for a serious felony enhancement where a defendant has been previously convicted "of any offense committed in another jurisdiction which includes all of In People v. Leever, supra, 173 Cal.App.3d at pages 872-873, 219 Cal.Rptr. 581, the court held a federal bank robbery committed within the jurisdiction of the Ninth Circuit Court of Appeals (as was this one) does not include all the elements of the California offense of robbery as a matter of law. ³ Since we think Leever correctly decided the point, we shall follow it here.

                the elements of any serious felony."   In this case, the only candidate for a prior serious felony is defendant's 1968 conviction for federal bank robbery in Sacramento in violation of section 2113(a) of title 18 of the United States Code. 2
                

Leever was a case in which the defendant put the prosecution to its proof of the prior serious felony. (Id., at pp. 870-871, 219 Cal.Rptr. 581.) Relying on People v. Jackson, supra, 37 Cal.3d at pages 835-837, 210 Cal.Rptr. 623, 694 P.2d 736 and People v. O'Bryan (1985) 37 Cal.3d 841, 210 Cal.Rptr. 450, 694 P.2d 135, Leever suggested in dictum that defendant could have validly admitted the serious felony "for in that situation, where a bargain is struck, the defendant's admission is not limited to the scope of the fact of the conviction, but extends to all allegations concerning the prior, even though the People might have We respectfully part company with the breadth of this dictum. In our view, the instant case continues to be controlled by People v. Crowson (1983) 33 Cal.3d 623, 190 Cal.Rptr. 165, 660 P.2d 389 where the court construed language in section 667.5 nearly identical to that in subdivision (a) of section 667 and concluded "that enhancement is only permissible when the elements of the foreign crime, as defined by that jurisdiction's statutory or common law, include all of the elements of the California felony." (P. 632, 190 Cal.Rptr. 165, 660 P.2d 389, fn. omitted.) We do not think Crowson's rule was changed by Jackson, where the court upheld defendant's admission of a prior residential burglary even though the People were precluded from proving the offense. (People v. Jackson, supra, 37 Cal.3d at p. 836, 210 Cal.Rptr. 623, 694 P.2d 736.)

been unable to prove those allegation. [Citations.]" (Leever, supra, 173 Cal.App.3d at p. 872, 219 Cal.Rptr. 581.)

In Jackson, the court was construing the serious felony enhancement for "burglary of a residence." (Id., at p. 832, 210 Cal.Rptr. 623, 694 P.2d 736.) The court concluded the enhancement provision did not define a...