People v. Harrell

• Decision Date: 23 February 1989
• Docket Number: No. A023011,A023011
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Hulen Timothy HARRELL, Defendant and Appellant.

Page 750

255 Cal.Rptr. 750

207 Cal.App.3d 1439

The PEOPLE of the State of California, Plaintiff and Respondent, v. Hulen Timothy HARRELL, Defendant and Appellant.

No. A023011.

Court of Appeal, First District, Division 3, California.

Feb. 23, 1989.

Certified for Partial Publication ^*.

Review Denied May 18, 1989.

Daniel Costello, San Jose, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John H. Sugiyama, Asst. Atty. Gen., Laurence K. Sullivan, Supervising Asst. Atty. Gen., David D. Salmon, Supervising Deputy Atty. Gen., Martin S. Kaye, Blair W. Hoffman, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

WHITE, Presiding Justice.

Defendant and appellant Hulen Timothy Harrell appeals from the judgment of the Superior Court of Alameda county entered after a jury found him guilty of assault with intent to commit rape. (Pen.Code, § 220.) Appellant, who proceeded in propria persona at trial, contends on appeal that the trial court erred in allowing the prosecution to impeach him with his prior burglary convictions, in improperly instructing the jury, and in failing to issue adequate "Faretta warnings," that the evidence was insufficient to sustain the verdict, and that enhancements were improperly imposed. We find appellant's contentions to be without merit.

I Facts

Rosario Zavalza testified that she was living at 1332 East 23rd Street in Oakland with her two children. On October 8, 1982, shortly after noon, as she was preparing lunch in the kitchen, she felt someone come up from behind her, loop a belt around her neck and place a hand over her mouth. She asked, "Who is it?" and "What is it that you want?" Appellant answered repeatedly, "You shut up," and "I want to steal," and "I want sex."

Zavalza forced her way into the hallway where appellant knocked her down. He then pushed her up against the wall and started kissing her on the mouth. She had never seen him before. Appellant was wearing only pants; the zipper was down and his penis was exposed.

Appellant threw Zavalza to the floor, punched her, and attempted to remove her skirt. Throughout the struggle, Zavalza's one and one-half-year-old daughter clung to her side despite appellant's efforts to keep her away.

Suddenly, Zavalza's brother, Otis Graham, who also lived at said residence, arrived, and appellant fled. Graham followed in pursuit.

Police Officer McCune testified that he observed appellant and Graham in a confrontation and drove toward them. The men resumed their chase and McCune followed. He caught them, handcuffed appellant and ordered him into the patrol car.

McCune testified further that appellant was carrying several items including his shoes, belt and boxer shorts in a bundle, and was holding up his pants at the waist and his genitals were in view. The belt was looped through the buckle.

Appellant's version of the facts is that several days prior to the incident in question, he was severely injured in a bicycle accident. Appellant submitted into evidence his hospital records which showed the extent of the injuries, including a fracture and lacerations.

Appellant testified that on the day in question, he met Otis Graham at a store owned by Graham's mother. Graham gave appellant some pills to alleviate his pain. Appellant then asked Graham for permission to lie down at his house and Graham obliged.

Appellant went to Graham's house. He walked into the kitchen where he met Zavalza; appellant claimed he had previously met Zavalza on "at least five or six occasions." He decided to take a shower. After getting undressed, appellant heard Zavalza's daughter screaming. He put on his pants and walked out into the hallway where he saw Zavalza shaking the child "viciously ... with the belt in her hand." Appellant and Zavalza were struggling over the belt when Graham arrived.

Graham yelled at appellant who then scooped up his clothes and left. Graham came after appellant and slashed him with a sharp instrument which prompted him to run.

Appellant claims that at the time of arrest he was wearing his belt and that Officer McCune ordered him to remove it.

II-V ^**

VI Prior Conviction Enhancements

Appellant received a 16-year sentence. This sentence consisted of a six-year principal term, a five-year prior conviction enhancement under section 667 for a 1981 burglary conviction, and another section 667 enhancement for four 1975 prior convictions which were tried together. The court found that appellant had been convicted of another burglary in 1980, but ordered that the section 667 enhancement for this conviction be stayed.

Appellant contends that the enhancement for the 1981 burglary conviction must be stricken. We rejected this contention the first time we considered it. (People v. Harrell, A023011 (March 26, 1986) [nonpub.] typed opn. at pp. 12-15.) The Supreme Court then granted review and transferred the case to us in light of People v. Alfaro (1986) 42 Cal.3d 627, 230 Cal.Rptr. 129, 724 P.2d 1154, overruled in People v. Guerrero (1988) 44 Cal.3d 343, 243 Cal.Rptr. 688, 748 P.2d 1150. Our subsequent opinion found that Alfaro barred the imposition of the enhancement and we directed the trial court to strike the enhancements for the 1980 and 1981 convictions. (People v. Harrell, supra, A023011, typed opn. at pp. 11-13.) The Supreme Court again granted review, and it has now transferred the case to this court for "reconsideration in light of People v. Guerrero (1988) 44 Cal.3d 343 [243 Cal.Rptr. 688, 748 P.2d 1150]." We conclude that imposition of the enhancement for the 1981 conviction is proper under Guerrero.

Alfaro held that the sentencing court could not look beyond the elements necessarily established by the prior conviction to determine if it involved a burglary of a residence. Thus, unless burglary of a residence was an essential element of the prior burglary conviction, the court could not consider the pleadings and court records in determining whether the burglary was residential. (Alfaro, supra, 42 Cal.3d at pp. 631-635, 230 Cal.Rptr. 129, 724 P.2d 1154.) In 1981, the crime of second degree burglary could be committed by entering a residence or a nonresidential structure. (People v. Jackson (1985) 37 Cal.3d 826, 830, fn. 2, 210 Cal.Rptr. 623, 694 P.2d 736, overruled in People v. Guerrero, supra, 44 Cal.3d 343, 243 Cal.Rptr. 688, 748 P.2d 1150.)

In Guerrero, the court concluded that it had wrongly decided Alfaro. (People v. Guerrero, supra, 44 Cal.3d at p. 356, 243 Cal.Rptr. 688, 748 P.2d 1150.) The court announced that "in determining the truth of a prior-conviction allegation, the trier of fact may look to the entire record of the conviction." (Id., at p. 345, 243 Cal.Rptr. 688, 748 P.2d 1150.) The court did say that while the trier of fact could look at the "entire record of the conviction," it could not relitigate the circumstances of the prior crime. (Id., at p. 355, 243 Cal.Rptr. 688, 748 P.2d 1150.)

The facts and result in Guerrero compel the conclusion that the trial court in this case did not err in imposing a section 667 enhancement for the 1981 burglary conviction. In Guerrero, the trial court imposed an enhancement based on "an accusatory pleading charging a residential burglary and defendant's plea of guilty or nolo contendere, ..." (Guerrero, supra, at p. 345, 243 Cal.Rptr. 688, 748 P.2d 1150.) The Supreme Court found that the trial court had "acted properly" in imposing the enhancement. (Id., at p. 356, 243 Cal.Rptr. 688, 748 P.2d 1150.) The Supreme Court remanded to the Court of Appeal "for further proceedings consistent with this opinion," (ibid.) thereby implying that the appellate court could affirm the judgment without remanding to the trial court for additional evidence of the residential character of the burglary.

In the present case, the information alleged that appellant was convicted of a residential second degree burglary on July 17, 1981. Over appellant's objection, the court permitted the prosecutor to introduce as evidence the information for the prior conviction. It alleged that appellant had entered "the residence of Stephen Lewis...." A minute order relating to the prior conviction, also admitted in evidence, stated that appellant had pled no contest to "Burglary, a violation of Section 459 of the Penal Code as charged in the Information."

The evidence on which the trial court in this case relied was identical to the type of evidence on which the trial court in Guerrero had relied. The Supreme Court in Guerrero concluded the trial court had "acted properly." We therefore find, under Guerrero, that the trial court in this case did not err in imposing a five-year enhancement under section 667 for the 1981 burglary conviction.

In our view Guerrero clearly disposes of this issue; nevertheless appellant contends that a 1987 amendment to Penal Code section 1192.7, subdivision (c)(18) renders the evidence submitted in the trial court insufficient to sustain the court's finding that the 1981 second degree burglary is a serious felony. At the time appellant stood trial, subdivision (c)(18) provided that a "burglary of a residence" was a "serious felony" within the meaning of Penal Code section 667. However, effective January 1, 1987, this language was deleted and subdivision (c)(18) was amended to make "burglary of an inhabited dwelling house ... or inhabited portion of any other building" a serious felony. (Stats.1986, ch. 489, § 1.) Appellant contends that burglary of "a residence" is not equivalent to burglary of "an inhabited dwelling house." In appellant's view, the use of the word "inhabited" in the amended statute indicates the Legislature intended to punish as serious felonies only those burglaries in which persons are actually inside the dwelling when the crime occurs. According to appellant this contrasts with the former version of the subdivision which permitted the conclusion that burglary of a building used as a residence...