People v. Jackson, Cr. 23622

• Court: United States State Supreme Court (California)
• Writing for the Court: BROUSSARD; BIRD, C.J., and MOSK; LUCAS
• Citation: 694 P.2d 736,37 Cal.3d 826,210 Cal.Rptr. 623
• Parties: , 694 P.2d 736 The PEOPLE, Plaintiff and Respondent, v. Harold Binion JACKSON, Defendant and Appellant.
• Docket Number: Cr. 23622
• Decision Date: 28 January 1985

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210 Cal.Rptr. 623 37 Cal.3d 826, 694 P.2d 736 The PEOPLE, Plaintiff and Respondent,
v.
Harold Binion JACKSON, Defendant and Appellant. Cr. 23622. Supreme Court of California,
In Bank. Jan. 28, 1985.
Rehearing Denied March 21, 1985.

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[694 P.2d 737] [37 Cal.3d 829] Quin Denvir, Frank O. Bell, Jr., State Public Defenders, under appointment by the Court of Appeal, Richard Lennon, Deputy State Public Defender, and Charles M. Sevilla, San Diego, under appointments by the Court of Appeal and the Supreme Court, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Jay M. Bloom, A. Wells Petersen and Frederick R. Millar, Jr., Deputy Attys. Gen., for plaintiff and respondent.

[37 Cal.3d 830] Christopher N. Heard, San Jose, and Terry L. White, Sacramento, as amici curiae on behalf of plaintiff and respondent.

BROUSSARD, Justice.

Proposition 8, approved by the voters on June 8, 1982, enacted Penal Code section 667 ¹ to provide an additional five-year prison term for repeat offenders who commit serious felonies. Section 667, subdivision (a), provides that "[a]ny 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 of 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 such prior conviction...." Subdivision (d) defines "serious felony" by reference to section 1192.7, subdivision (c); that section lists 25 items including "burglary of a residence." This appeal presents two primary issues: (1) under what circumstances can the court treat a second degree burglary--which may but need not necessarily involve entry into a "residence"--as a "serious felony" for purposes of the five-year enhancement, and (2) is the five-year enhancement of section 667 limited by section 1170.1, subdivision (g), which bars imprisonment for more than double the base term.

Defendant Jackson was charged with one count of burglary, in that on August 20, 1982, he "did unlawfully enter a building, a residence within the meaning of Penal Code section 667, with intent to commit theft." The complaint further alleged three prior serious felony convictions of second degree burglary, describing each as a "residential burglary."

Defendant entered into a plea bargain under which he pled guilty to burglary, admitted that the burglary involved a residence, and further admitted the truth of the third alleged prior residential burglary. ² The prosecution [37 Cal.3d 831] agreed to drop the

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[694 P.2d 738] remaining two prior felony charges, and to argue for no more than the middle term of two years for second degree burglary. ³ As part of the bargain, the parties agreed that defendant would retain the right to challenge the validity of the five-year enhancement imposed by section 667, and if that enhancement were held invalid, he would then receive instead a one-year enhancement pursuant to section 667.5. ⁴ The court accordingly imposed a sentence of two years for the burglary conviction, with a five-year enhancement because of the prior conviction of a serious felony.

We first consider the question whether--and under what circumstances--a court can treat a conviction for second degree burglary as a "burglary of a residence," invoking the serious felony enhancement of section 667. Defendant maintains that insofar as burglary is concerned, the enhancement by its terms applies only to persons "convicted" of "burglary of a residence." He argues that there is no such specific crime--or, at any rate, that such a crime did not exist at the time of his present and prior offenses ⁵--and consequently that the enhancement is inapplicable to his conviction.

Proposition 8, however, 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 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, ⁶ and added two new matters: selling,[37 Cal.3d 832] 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. ⁷ Another refers generally to "any felony punishable by death or imprisonment ... for life." ( § 1192.7, subd. (c)(7).) Two other paragraphs incorporate

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[694 P.2d 739] enhancements which may attach to any felony. ⁸ 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. (See People v. McCart (1982) 32 Cal.3d 338, 342, 185 Cal.Rptr. 284, 649 P.2d 926; Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458, 478, 156 Cal.Rptr. 14, 595 P.2d 592, and cases there cited.) 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. ⁹ 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 833] We reject also defendant's contention that the serious felony enhancement of section 667 cannot be based upon his admitted prior residential burglary because that crime antedated the enactment of Proposition 8. Section 667 plainly was intended to take account of antecedent crimes; it includes in the list incorporated from section 1192.7 crimes which were repealed prior to the effective date of the initiative. (See fn. 7, ante.) The basic purpose of the section--the deterrence of recidivism--would be frustrated by a construction which did not take account of prior criminal conduct. No constitutional bar prevents the application of section 667 to the later offense solely because the prior conviction which serves as a basis for enhancement was committed before the initiative passed. In the context of habitual criminal statutes, "increased penalties for subsequent offenses are attributable to the defendant's status as a repeat offender and arise as an incident of the subsequent offense rather than constituting a penalty for the prior offense." (In re Foss (1974) 10 Cal.3d 910, 922, 112 Cal.Rptr. 649, 519 P.2d 1073.)

Defendant finally contends that even though he admitted that both his current burglary and the third alleged prior burglary involved entry into a residence, his admissions are insufficient to establish the fact. He points out that both convictions were for second degree burglary, that entry into a residence is not an essential element of second degree burglary, and argues that under People v. Crowson (1983) 33 Cal.3d 623, 190 Cal.Rptr. 165, 660 P.2d 389, the court may not go beyond the defined elements of the crime in determining the nature of defendant's conduct.

In Crowson, defendant's sentence had been enhanced pursuant to section 667.5, subdivision (b) (see fn. 4, ante ) for a prior

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[694 P.2d 740] federal prison term for conspiracy. Under section 667.5 the prior term could be used to enhance only if the offense "includes all of the elements of the particular felony as defined under California law...." Because California conspiracy law includes an overt act as an element of the offense and federal law, as found in Crowson, does not, the court held that the enhancement was improper.

Crowson rejected the claim that the prosecution could go behind the elements of the foreign crime to prove that defendant's conduct in the prior incident would have subjected him to a conspiracy conviction in California, citing In re Finley (1968) 68 Cal.2d 389, 66 Cal.Rptr. 733, 438 P.2d 381. Finley discussed the related question whether a foreign conviction could be used pursuant to section 668 ¹⁰ as a basis for increased punishment under [37 Cal.3d 834] the then-existing habitual criminal law (former § 644). Chief Justice Traynor explained that such a determination does not involve "the opening or reopening of questions calling for resolution on the basis of the testimony of witnesses who may have died or disappeared or where memories have faded.... The fact that an accused suffered a foreign conviction of a crime is made officially of record at the time and place of such conviction, and the law of the jurisdiction where he suffered it is judicially noticed. [Citations.] The least adjudicated...