People v. Guerrero

• Decision Date: 11 February 1988
• Citation: 44 Cal.3d 343,748 P.2d 1150,243 Cal.Rptr. 688
• Court: California Supreme Court
• Parties: , 748 P.2d 1150 The PEOPLE, Plaintiff and Respondent, v. Raymond Ramirez GUERRERO, Defendant and Appellant. Crim. 26174.

Page 688

243 Cal.Rptr. 688

44 Cal.3d 343, 748 P.2d 1150

The PEOPLE, Plaintiff and Respondent, v. Raymond Ramirez GUERRERO, Defendant and Appellant.

Crim. 26174.

Supreme Court of California in Bank.

Feb. 11, 1988.

Rehearing Denied March 24, 1988.

Frank O. Bell, Jr., State Public Defender, under appointment by the Supreme Court, Richard Lennon, Deputy State Public Defender, and Richard Goldman, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Frederick R. Millar, Jr., and Steven H. Zeigen, Deputy Attys. Gen., for plaintiff and respondent.

Kent S. Scheidegger as amicus curiae on behalf of plaintiff and respondent.

MOSK, Justice.

We are called upon to review People v. Alfaro (1986) 42 Cal.3d 627, 230 Cal.Rptr. 129, 724 P.2d 1154, in which a bare majority of the court held proof that a prior conviction was a "serious felony" for the purpose of the five-year enhancement under Penal Code sections 667 and 1192.7, subdivision (c), was limited to matters necessarily established by the prior judgment of conviction. We conclude that in determining the truth of a prior-conviction allegation, the trier of fact may look to the entire record of the conviction.

I

In an information filed by the Riverside District Attorney, defendant was charged with burglarizing an inhabited dwelling house on October 15, 1984, in violation of Penal Code section 459 (hereafter section 459). It was alleged that in 1978 defendant had been convicted of the crime of residential burglary in violation of section 459, which was a serious felony within the meaning of Penal Code sections 667 (hereafter section 667) and 1192.7, subdivision (c) (hereafter section 1192.7(c)). It was also alleged that he had suffered a similar conviction in 1981. Defendant pleaded not guilty, denied the prior-conviction allegations, and requested a jury trial.

The trial was bifurcated. The charge involving the 1984 residential burglary was tried to the jury. To link defendant to the crime, the prosecution presented eyewitness testimony and physical evidence, including loot from the burglarized house that was found in defendant's possession. The defense offered no evidence. The jury returned a verdict of guilty.

On defendant's waiver of further jury trial, the question of the truth of the two prior-conviction allegations was tried to the court. After reviewing the record of each conviction, which included an accusatory pleading charging a residential burglary and defendant's plea of guilty or nolo contendere, the court found each allegation to be true.

At sentencing the court imposed the upper term of six years in prison for the burglary conviction. "As far as the two priors are concerned," the court went on, "I'm not sure the Court has the power to strike any prior." It then imposed a five-year enhancement for each of the prior convictions. Judgment was entered accordingly.

On appeal, defendant contended inter alia that the court erred when it considered evidence beyond the judgment of conviction in determining the truth of the prior-conviction allegations, and that it improperly determined it was without authority to strike those allegations.

The Court of Appeal concluded that the trial court erred in its adjudication of the truth of the prior-conviction allegations. It stated: "In People v. Alfaro [citation], the Supreme Court held the 'record of conviction' which may be used to prove the nature of the prior was 'the judgment, and matters necessarily adjudicated therein.' Because the nature of the building entered during the burglary was not an element of the crime when Guerrero committed his two prior offenses, enhancements cannot be imposed under Penal Code section 667." As a result of that conclusion, the court vacated the enhancements and consequently did not reach defendant's claim that the trial court erred in ruling it lacked authority to strike the prior-conviction allegations. Accordingly, the court modified the judgment to strike the enhancements and reduce defendant's term from 16 to 6 years, and affirmed the judgment as modified.

The Attorney General filed a petition for review, asking us to reexamine People v. Alfaro, supra, 42 Cal.3d 627, 230 Cal.Rptr. 129, 724 P.2d 1154. We granted the petition.

II

Section 667, adopted by the people as part of Proposition 8 at the June 8, 1982, Primary Election, provides for the enhancement of sentences for habitual criminals. Subdivision (a) of that section declares in relevant part that "any person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each prior conviction brought and tried separately." Subdivision (d) defines "serious felony" as a serious felony listed in section 1192.7(c). At the time relevant here, that provision listed 25 items, including "burglary of a residence" (former Pen.Code, § 1192.7, subd. (c)(18), added by Prop. 8, Primary Elec., June 8, 1982).

In general, the application of section 667 is unproblematical: virtually all the "serious felonies" listed in section 1192.7(c) are in fact felonies specifically defined in the Penal Code. For example, among such offenses are murder (Pen.Code, §§ 187, 1192.7, subd. (c)(1)), rape (id., §§ 261, 1192.7, subd. (c)(3)), and robbery (id., §§ 211, 1192.7, subd. (c)(19)). But in the case of "burglary of a residence," the matter is different: there is no offense specifically so defined in the Penal Code. The term, however, is not empty.

In People v. Jackson (1985) 37 Cal.3d 826, 210 Cal.Rptr. 623, 694 P.2d 736, a plurality of this court addressed and rejected the claim that because there was no specific crime labeled "burglary of a residence," no enhancement could be predicated on what in fact had been the burglary of a residence. The opinion reasoned as follows.

"Proposition 8 ... did not confine its list of 'serious felonies' to specific, discrete offenses. Its list of serious felonies enumerated in section 1192.7 appears to be based largely upon [Penal Code] section 12021.1, subdivision (b). That provision, enacted in April of 1982 to require a six-month county jail term as a condition of probation when a defendant previously convicted of a violent offense is found guilty of owning or possessing a concealable firearm, included a list of 26 'violent offenses.' Section 1192.7 incorporated that list, deleted three paragraphs, and added two new matters: selling, furnishing, administering or providing heroin, cocaine or PCP to a minor (p 24); and burglary of a residence (p 18).

"The resulting list of serious felonies as set out in section 1192.7, and incorporated into section 667, is an amalgam of different elements. Two describe former felonies, now repealed. Another refers generally to 'any felony punishable by death or imprisonment ... for life.' (§ 1192.7, subd. (c)(7).) Two other paragraphs incorporate enhancements which may attach to any felony. Finally, the two new paragraphs added to the list both describe criminal conduct which does not correspond precisely to the elements of any then-existing criminal offense.

"In construing sections 667 and 1192.7, we must try to give effect to every phrase and paragraph, leaving no part of the statute useless or deprived of meaning. [Citations.] We therefore reject the view that these sections consist only of specific statutory offenses and enhancements, for that view ignores paragraphs (18) and (24) of section 1192.7, subdivision (c), and renders those paragraphs useless and of no effect. We must assume that these paragraphs were added to the list apparently taken from section 12021.1, subdivision (b), for a purpose--and on reflection, that purpose appears clear. The list in section 12021.1, subdivision (b), was intended to enumerate 'violent' crimes. Paragraphs (18) and (24) describe nonviolent criminal conduct which is, nevertheless, so dangerous that its repeated occurrence might in the minds of the voters call for enhanced punishment equivalent to that imposed upon violent recidivists. The inclusion of these items evidences the intent of the voters to deter the conduct described in these paragraphs equally with the violent criminal conduct described in other paragraphs. We give effect to this intent by construing paragraphs (18) and (24) as referring not to specific criminal offenses, but to the criminal conduct described therein, and applicable whenever the prosecution pleads and proves that conduct." (37 Cal.3d at pp. 831-832, 210 Cal.Rptr. 623, 694 P.2d 736, fns. omitted.)

From the foregoing discussion the question arises: to what may the trier of fact look in determining whether the defendant suffered a prior conviction for "burglary of a residence"?

In People v. Alfaro, supra, 42 Cal.3d 627, 632-635, 230 Cal.Rptr. 129, 724 P.2d 1154, a majority of the court held that proof that a prior conviction was a "serious felony" for the purpose of the five-year enhancement under sections 667 and 1192.7(c) was limited to matters necessarily established by the prior judgment of conviction. In coming to this conclusion, the majority relied on dictum in People v. Jackson, supra, 37 Cal.3d 826, 833-834, 210 Cal.Rptr. 623, 694 P.2d 736. In framing that dictum, the Jackson court in turn relied on People v. Crowson (1983) 33 Cal.3d 623, 190 Cal.Rptr. 165, 660 P.2d 389--which discussed sentence enhancement for a prior foreign conviction under Penal Code section 667.5, subdivision (f), and held 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" ( Crowson, supra, at p. 632, 190 Cal.Rptr....