People v. Haney

• Decision Date: 29 June 1994
• Docket Number: No. F020053,F020053
• Citation: 31 Cal.Rptr.2d 547,26 Cal.App.4th 472
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Lonnie Dale HANEY, Defendant and Appellant.

Page 547

31 Cal.Rptr.2d 547

26 Cal.App.4th 472

The PEOPLE, Plaintiff and Respondent, v. Lonnie Dale HANEY, Defendant and Appellant.

No. F020053.

Court of Appeal, Fifth District, California.

June 29, 1994.

Certified for Partial Publication. ^*

Rehearing Denied July 22, 1994.

Review Denied Oct. 27, 1994.

[26 Cal.App.4th 474] Michael Bacall, San Diego, court appointed, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Asst. Atty. Gen., Roger E. Venturi and Gregory W. Baugher, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

THAXTER, Associate Justice.

A jury convicted appellant Lonnie Dale Haney of three counts of burglary (Pen.Code, § 459), two of first degree and one of second degree. During trial, the court conducted a hearing pursuant to Evidence Code section 402 to determine the admissibility of appellant's confessions to police officers. The trial court ruled the confessions were admissible. After the jury verdicts were rendered, the court conducted a nonjury, bifurcated trial on several prior conviction enhancement allegations. The trial court found true allegations appellant had two prior convictions of serious felonies within the meaning of Penal Code section 667, subdivision (a), and had served two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b).

Appellant was sentenced to a total term of 18 years 4 months in prison. The upper term of six years was imposed on one of the first degree burglary counts, and a consecutive one-third the midterm of one year four months was imposed for the other count. A concurrent middle term of two years was imposed for the second degree burglary. In addition, the trial court imposed two consecutive five-year enhancements pursuant to Penal Code section 667, subdivision (a), and a consecutive one-year enhancement pursuant to section 667.5, subdivision (b).

Appellant contends the court erred in admitting evidence of his confessions. He also claims the imposition of one of the prior serious felony enhancements violated the double punishment prohibition in Penal Code section 654.

We reject both contentions and affirm.

FACTS ^**

DISCUSSION

I. Appellant's Admissions Were Properly Admitted ^***

II. There is Sufficient Evidence to Support the Serious Felony Enhancement

Appellant contends the trial court erred when it used his 1970 prior robbery conviction to enhance his sentence. The 1970 abstract shows appellant pleaded guilty to two counts of armed robbery and one count of assault with a deadly weapon, presumably arising out of the same act or a continuous course of conduct. ² In an apparent attempt to avoid the multiple punishment prohibitions of Penal Code section 654, the sentencing court ordered the three counts "be merged as provided by Section 654 of the Penal Code."

To establish a prior conviction enhancement allegation, the prosecutor must prove beyond a reasonable doubt all elements of the enhancement, i.e., the defendant was convicted, the conviction was of an offense within the definition of the particular statute invoked, and any other element required by the statute alleged (e.g., proof defendant served a term in state prison if that is an element of the enhancement). (See People v. Morrison (1938) 26 Cal.App.2d 616, 80 P.2d 94.) Generally the prosecutor proves the prior conviction by introduction of certified copies of the abstract of judgment and records of the Department of Corrections showing imprisonment. (Pen.Code, § 969b; People v. Hoerler (1962) 208 Cal.App.2d 402, 406-407, 25 Cal.Rptr. 209; People v. Green (1982) 134 Cal.App.3d 587, 591, 184 Cal.Rptr. 652.) Once the prosecutor presents this prima facie evidence of conviction, the trial court is allowed to make reasonable inferences from the facts presented. If there is no evidence to the contrary, the trial court may consider the abstract and the facts of the particular case, and utilizing the official duty presumption, find a defendant was convicted of and served the term of imprisonment for the listed felony. ³ (People v. Crockett (1990) 222 Cal.App.3d 258, 262, 271 Cal.Rptr. 500; People v. Castillo, supra, 217 Cal.App.3d at p. 1024, 266 Cal.Rptr. 271; see also People v. Jones, supra, 203 Cal.App.3d at pp. 459-460, 249 Cal.Rptr. 840; People v. Young (1987) 192 Cal.App.3d 812, 818, 237 Cal.Rptr. 703.)

Penal Code section 667, subdivision (a) provides for a five-year enhancement upon conviction of a serious felony when a defendant has previously been "convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony." For purposes of this section, a serious felony is any felony listed in subdivision (c) of Penal Code section 1192.7. (Pen.Code, § 667, subd. (d).) Robbery and burglary of an inhabited dwelling are both listed as serious felonies. The prosecutor made his prima facie showing when he presented the 1970 abstract entering judgment and sentencing appellant to state prison.

Appellant argues, however, relying on People v. Pearson (1986) 42 Cal.3d 351, 228 Cal.Rptr. 509, 721 P.2d 595, that his 1970 robbery conviction may not be used to enhance his sentence in this case because the abstract of judgment does not establish clearly which of the three 1970 convictions were stayed pursuant to Penal Code section 654. In Pearson, the defendant committed an act of sodomy on each of two children. For each act, he was convicted of two offenses, sodomy with a child under fourteen years of age (Pen.Code, § 286, subd. (c)) and lewd conduct (§ 288, subd. (a)). The trial court imposed sentence on the two sodomy counts and, pursuant to Penal Code section 654, stayed sentence on the two lewd conduct convictions. On appeal our Supreme Court was asked to consider whether all four convictions could be used at a later date to enhance a subsequent sentence should the defendant commit another crime.

The Supreme Court concluded Penal Code section 654 prohibited multiple punishment and therefore a conviction which is stayed to prevent multiple punishment cannot be used for any further punitive purpose, including later use to enhance a sentence under a recidivism statute. (People v. Pearson, supra, 42 Cal.3d at p. 361, 228 Cal.Rptr. 509, 721 P.2d 595.) The rule is stated in Pearson as follows: "In keeping with our reason for using stays in multiple conviction situations, the defendant is penalized if he suffers enhancements based on stayed convictions. Thus to enhance a defendant's sentence because of a stayed conviction would constitute multiple punishment and is prohibited by section 654." (Id. at p. 363, 228 Cal.Rptr. 509, 721 P.2d 595.)

Appellant argues because the trial court in this case could not determine which of the three 1970 convictions were "stayed" under Penal Code section 654, it was precluded from using any of the three to enhance his sentence under the prohibitive language of Pearson. Appellant's argument must fail for two reasons. First, Pearson should not be read so narrowly. The Supreme Court in Pearson addressed the enhancement issue in the absence of an actual controversy. It decided the enhancement issue in the context of the original conviction, assuming the defendant would commit another crime. The intent of the decision was clearly to prohibit multiple use of both a stayed and unstayed conviction at a later date for enhancement purposes.

Here there was no attempt by the trial court to subject appellant to multiple punishment for his conduct in 1970. It is apparent from the record that the three 1970 convictions arose out of related criminal conduct and therefore appellant could not be punished then or later on all three counts. However, only one of the 1970 convictions is being used to enhance appellant's sentence. Moreover, applying Pearson so narrowly would offend the dictates of article I, section 28, subdivision (f) of our state Constitution which provides that prior convictions shall be used without limitation for purposes of enhancing the sentences of repeat offenders. Appellant should not...