People v. Garrett

• Citation: 112 Cal.Rptr.2d 643,92 Cal.App.4th 1417
• Decision Date: 23 October 2001
• Docket Number: No. H021589.,H021589.
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. William Joseph GARRETT, Defendant and Appellant.

112 Cal.Rptr.2d 643

92 Cal.App.4th 1417

The PEOPLE, Plaintiff and Respondent, v. William Joseph GARRETT, Defendant and Appellant.

No. H021589.

Court of Appeal, Sixth District.

October 23, 2001.

Review Denied January 29, 2002.

Alan Siraco, Jonathan Grossman, Stockton, Attorneys for Defendant/Appellant.

Gerald A. Engler, Deputy Attorney General, Attorney for Plaintiff/Respondent.

PREMO, Acting P.J.

Defendant William Joseph Garrett pled guilty to a residential burglary, a second degree burglary, and a vehicle theft all occurring in 1998, and the trial court found true five Three Strikes priors. The court sentenced defendant to 25 years to life in state prison on May 12, 2000, after the March 7, 2000 passage of Proposition 21 amended the definition of serious felony burglary, Penal Code section 1192.7, subdivision (c)(18)¹ (hereafter, section 1192.7(c)(18)). On appeal, defendant asserts that his prior second degree residential burglaries were not strike priors under newly-amended section 1192.7(c)(18).

FACTS

On March 30, 1998, someone entered the home of Aldo and Heidi Oliveri through a kitchen window [outside of which defendant's fingerprint was found] and took "everything." A fur coat, jewelry, two wallets containing cash, social security cards, credit cards, the main telephone with the answering machine, a camcorder and other electronic equipment, and "a lot of my husband's technical equipment" were taken. A month later, three stolen checks were forged and a phone card was used by a couple who had obtained the phone card from defendant. Defendant was charged with residential burglary (§§ 459/460, subd. (a)) in Santa Clara County Superior Court case number 206612.

On the morning of May 12, 1998, the director of the KinderCare Learning Center (KinderCare) found a side window of the building broken and a security bar removed from the door. Missing were KinderCare's computer system, credit card, a jar of quarters, several checks made out to KinderCare, diapers, food, and KinderCare's 1997 Ford van. Defendant was arrested while driving the van later the same day. The KinderCare gas card was found in a fanny pack in the van and the quarters were found in defendant's pocket. Defendant was charged in Santa Clara County Superior Court case number 205682 with burglary (§§ 459/460, subd. (b)) and vehicle theft (Veh.Code, § 10851, subd. (a)).

Both cases alleged five 1980 to 1982 prior residential burglary convictions under the Three Strikes law (§§ 667, subds.(b)-(i) and 1170.12) and two prison priors (§ 667.5, subd. (b)). The five "serious felon[ies] and/or [] violent felonfies]" (§§ 667, subds.(b)-(i) and 1170.12) were alleged as "burglary of an inhabited dwelling house" in Santa Clara County Superior Court case numbers 80439, 76523, 85784, and 78076.

Pursuant to a plea bargain, defendant pled guilty to all charges. The priors in case number 205682 were dismissed. At a court trial, all five strike priors were found true in case number 206612 and the prison priors were dismissed. Defendant's Romero² motion requesting the court to exercise its discretion and strike the priors was denied. Defendant received the 25year-to-life sentence for the residential burglary and concurrent with it two 2-year terms for the KinderCare burglary and the vehicle theft. This appeal ensued.

APPLICATION OF SECTION 1192.7(c)(18)

Defendant contends the sentence of 25 years to life violates his rights to due process and freedom from cruel and unusual punishment because none of his prior convictions were "serious" felonies as defined in section 1192.7(c) as amended by the enactment of Proposition 21. The version of section 1192.7(c)(18) in effect when defendant committed the current crimes defined as a "serious felony" a "burglary of an inhabited dwelling house, vessel, as defined in the Harbors and Navigation Code, which is inhabited and designed for habitation, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, trailer coach, as defined by the Vehicle Code, or the inhabited portion of any other building." (Stats.1998, ch. 754, § 1.) Proposition 21 changed that to "any burglary of the first degree." (§ 1192.7(c)(18).) As applied to defendant's case, the March 2000 amendment to section 1192.7(c)(18) is ameliorative, and therefore is controlling. (People v. Roberts (1994) 24 Cal.App.4th 1462, 1466, 29 Cal.Rptr.2d 771.)

Defendant reasons that because Proposition 21 amended section 1192.7(c)(18) "to define serious felony burglaries in terms of an `offense'—i.e., `first degree burglary'— rather than in terms of `conduct,' ... the rationale central to Jackson's<sup>3</sup> holding that the legislative body enacting the law was concerned with `conduct' and not `offenses' has been eliminated. Therefore, there is no need to `go behind' a judgment of conviction for `second degree' burglary in order to determine the residential nature of the conduct." Defendant maintains that the trial court erred in considering the record of conviction to determine whether his prior burglaries were residential.

Plaintiff counters by tracing the changes to section 1192.7(c)(18) from its inception in June 1982 as part of Proposition 8 (People v. Cruz (1996) 13 Cal.4th 764, 772, 55 Cal.Rptr.2d 117, 919 P.2d 731 (Cruz)) to the passage of Proposition 21. Plaintiff claims this historical backdrop "shows the following principles, which we submit are not open to dispute: (1) the original purpose of section 1192.7(c)(18) was to include all residential burglaries in the list of serious felonies; (2) subsequent legislation has confirmed the broad scope of section 1192.7(c)(18); and (3) courts will not presume that the original purpose of the section has been narrowed or diluted as the unintended consequence of subsequent legislation." (Original italics.)

"As in any case involving statutory interpretation, our fundamental task here is to determine the Legislature's intent so as to effectuate the law's purpose. [Citation.] We begin by examining the statute's words, giving them a plain and commonsense meaning. [Citation.] We do not, however, consider the statutory language `in isolation.' [Citation.] Rather, we look to `the entire substance of the statute ... in order to determine the scope and purpose of the provision.... [Citation.]' [Citation.] ... We must harmonize `the various parts of a statutory enactment ... by considering the particular clause or section in the context of the statutory framework as a whole.' [Citations.]" (People v. Murphy (2001) 25 Cal.4th 136, 142, 105 Cal.Rptr.2d 387, 19 P.3d 1129.)

"`[L]anguage that appears unambiguous on its face may be shown to have a latent ambiguity.' [Citation.] In such a case, a court may turn to customary rules of statutory construction, the `"wider historical circumstances,"' or legislative history for guidance, keeping in mind the `"consequences that will flow from a particular interpretation."` [Citation.] It is not always preferable to rely on the literal meaning of the words used. `"[I]t is a settled principle of statutory interpretation that language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend." [Citations.] ... Thus, "[t]he intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act."` [Citations.]" (People v. Toumsend (1998) 62 Cal.App.4th 1390, 1395, 73 Cal. Rptr.2d 438.) "We interpret initiative measures using the ordinary rules and canons of statutory construction. [Citation.] Thus, `our primary purpose is to ascertain and effectuate the intent of the voters who passed the initiative measure. [Citations.]' [Citation.]" (Yeroushalmi v. Miramar Sheraton (2001) 88 Cal.App.4th 738, 747-748, 106 Cal.Rptr.2d 332.)

The original version of section 1192.7(c)(18) listed "burglary of a residence" as a serious felony. At that time, first degree burglary was defined in section 460, subdivision 1, as the nighttime burglary of an inhabited dwelling or trailer coach, or the inhabited portion of any building. (Cruz, supra, 13 Cal.4th at p. 770, 55 Cal.Rptr.2d 117, 919 P.2d 731; Stats.1978, ch. 579, § 23, p. 1985.)

The nighttime requirement for first degree burglary was eliminated from section 460, subdivision (1), in 1982. (Stats.1982, ch. 1290, § 1, p. 4774; Stats.1982, ch. 1297, § 1, p. 4786.) Thereafter, the question arose whether a residential burglary which occurred in the daytime prior to the 1982 change qualified as a serious felony conviction under section 1192.7(c)(18) for purposes of the five-year sentence enhancement authorized by section 667, subdivision (a). The Supreme Court found the intent of the electorate was to treat all residential burglaries as "serious" felonies and concluded that section 1192.7(c)(18) referred "`not to specific criminal offenses, but to the criminal conduct described therein.'" (Cruz, supra, 13 Cal.4th at p. 773, 55 Cal.Rptr.2d 117, 919 P.2d 731, quoting Jackson, supra, 37 Cal.3d at p. 832, 210 Cal.Rptr. 623, 694 P.2d 736.) The Court further concluded that the 1986 amendment of section 1192.7(c)(18), which deleted the reference to "burglary of a residence" and substituted "burglary of an inhabited dwelling house, or trailer coach as defined by the Vehicle Code, or inhabited portion of any other building" (Stats.1986, ch. 489, § 1, p. 1809), was not intended "to narrow the application of the `burglary of a residence' serious felony enhancement," but rather "was intended simply as a clarification of the existing provision." (People v. Cruz, supra, 13 Cal.4th at p. 774, 55 Cal.Rptr.2d 117, 919 P.2d 731.)

Section 460 attained its pre-Proposition 21 language after 1989 and 1991 amendments.⁴ Section 1192.7(c)(18) attained its pre-Proposition 21 language in 1998 when the Legislature amended it to conform to section 460 in 1998. The development of the two statutes is shown in the table below:

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