People v. Myers

• Decision Date: 30 September 1993
• Docket Number: No. S030607,S030607
• Citation: 22 Cal.Rptr.2d 911,5 Cal.4th 1193,858 P.2d 301
• Court: California Supreme Court
• Parties: , 858 P.2d 301 The PEOPLE, Plaintiff and Respondent, v. Victor Craddock MYERS, Defendant and Appellant

Page 911

22 Cal.Rptr.2d 911

5 Cal.4th 1193, 858 P.2d 301

The PEOPLE, Plaintiff and Respondent, v. Victor Craddock MYERS, Defendant and Appellant.

No. S030607.

Supreme Court of California

Sept. 30, 1993.

[5 Cal.4th 1194] Paul McCarthy, Oakland, under appointment by the Supreme Court, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Asst. Atty. Gen., Michael J. Weinberger, W. Scott Thorpe and Jane N. Kirkland, Deputy Attys. Gen., for plaintiff and respondent.

BAXTER, Justice.

We are asked to decide whether a jury or, if jury trial has been waived, the court may look beyond the statutory elements of a crime of which a defendant was convicted in another state and consider the record of the prior conviction to determine whether the term "enhancement," created by Penal Code section 667, subdivision (a) (hereafter section 667(a)), ¹ has been established.

The Court of Appeal, believing that the question was governed by People v. Crowson (1983) 33 Cal.3d 623, 190 Cal.Rptr. 165, 660 P.2d 389, held that a section 667(a) enhancement may be based on conviction of a serious felony in a foreign jurisdiction only if all of the elements of the corresponding California felony are elements of the foreign offense. It therefore struck the disputed term enhancement which the trial court imposed after considering an Arizona probation report.

We conclude that application of Crowson to the section 667(a) enhancement would be inconsistent with the intent of the electorate which adopted section 667 in 1982 as part of the initiative measure denominated Therefore, we shall reverse the judgment of the Court of Appeal, and remand the matter to that court for consideration of appellant's remaining claims. ²

                [858 P.2d 302] Proposition 8, "The Victims' Bill of Rights."   Just as it may do when the prior conviction was suffered in California (People v. Guerrero (1988) 44 Cal.3d 343, 243 Cal.Rptr. 688, 748 P.2d 1150), the trier of fact may consider the entire record of the proceedings leading to imposition of judgment on the prior conviction to determine whether the offense of which the defendant was previously convicted involved conduct which satisfies all of the elements of the comparable California serious felony offense
                

I FACTS

On June 3, 1991, appellant Victor Craddock Myers pleaded guilty to the February 13, 1991, burglary of an inhabited dwelling house (§ 459) and admitted the truth of an allegation that on May 16, 1989, he had been convicted in Nevada of burglary, conceding that the Nevada offense was a serious felony within the meaning of section 667(a). Pursuant to the agreement under which the plea was entered, the trial court determined the truth of two other enhancement allegations. The one in issue here alleged that on October 14, 1975, respondent had been convicted of burglary in violation of Arizona Revised Statutes, former sections 13-301 and 13-302. That conviction was also alleged to be a serious felony within the meaning of section 667(a). The trial court, after considering records of the 1975 conviction, including the probation report submitted to the Arizona court, found the prior conviction allegation true and added a five-year consecutive term to the term for the California burglary. ³

Section 667(a) mandates imposition of that five-year enhancement if a defendant convicted of a serious felony "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...."

Subdivision (d) of section 667 defines "serious felony" as one listed in subdivision (c) of section 1192.7, among which is "(18) burglary of an inhabited dwelling house, or trailer coach ... or inhabited portion of any other building." Section 1192.7 was also adopted by the electorate as part of Proposition 8. At the time of its adoption subdivision (c)(18) provided that "burglary of a residence" was a serious felony. The 1986 amendment (Stats.1986, ch. 489, § 1, p. 1809) substituted "inhabited dwelling house" for "residence." Prior to the 1986 amendment we had already concluded that the term "residence" in section 1192.7 was "intended to encompass not only dwelling houses and trailer coaches, but also 'the inhabited portion of any other building.' " (People v. O'Bryan (1985) 37 Cal.3d 841, 844, 210 Cal.Rptr. 450, 694 P.2d 135.)

The 1975 Arizona indictment charging appellant with burglary alleged in Count I that he feloniously committed "burglary of the dwelling house belonging to Edward Williams ... in violation of [Arizona Revised Statutes, former section] 13-302." ⁴ At that time Arizona Revised Statutes section 13-302 defined burglary as: "A person entering a building, dwelling house, office The 1975 indictment did not expressly allege that the "dwelling house belonging to Edward Williams" was inhabited, and the Arizona statute did not include that as an element of burglary. ⁵ However, the recitals of the probation report submitted to the Arizona court prior to the imposition of sentence suggested that the residence was inhabited at the time of the offense. The "Official Version" described in the report stated that Williams found defendant under the bed in the master bedroom when Williams and his wife returned to their home from an out-of-town visit. The report recited as "Defendant's Version of the Offense" that appellant had stated he was a friend of the Williams family, had been at the residence the night before the offense, and, on the following day, while the Williamses were out of town, had entered the home to take some change.

[858 P.2d 303] room, apartment, tenement, shop, warehouse, store, mill, barn, stable, garage, tent, vessel, railroad car, or motor vehicle, trailer or semitrailer ... with intent to commit grand or petty theft, or any felony, and a person entering an outhouse or other building not enumerated in this section with intent to commit a felony...."

Although appellant argued that only the statutory elements of the Arizona burglary could be considered in determining the truth of the enhancing allegation, the trial court considered the probation report and found the allegation that appellant had committed the burglary which was a serious felony true. Appellant did not object to admission of the report into evidence, but he did object to consideration of the hearsay recitals in the report to determine if there was a factual basis upon which to find the allegation true. Because it concluded that People v. Crowson, supra, 33 Cal.3d 623, 190 Cal.Rptr. 165, 660 P.2d 389 applied and on that basis ordered the enhancement stricken, the Court of Appeal did not address any of appellant's other arguments. ⁶

II DISCUSSION

This court was first called upon to decide what evidence may be considered by the jury or court in determining whether a foreign felony conviction contained all of the elements of a California offense for purposes of sentence enhancement in People v. Crowson, supra, 33 Cal.3d 623, 190 Cal.Rptr. 165, 660 P.2d 389. ⁷ There the enhancement authorized by section 667.5, subdivision (b) was in issue. The subdivision mandated a one-year consecutive term for prior separate prison terms served for any felony. Subdivision (f) of section 667.5 defined prior conviction as including "a conviction in another jurisdiction for an offense which includes all of the elements of the particular felony as defined under California The trial court had imposed the one-year enhancement on Crowson's sentence after concluding that the defendant's federal conspiracy conviction qualified as a prior conviction within the meaning of section 667.5. The defendant contended, and we agreed, that the federal conspiracy offense (21 U.S.C. § 846) differed from the California offense in that it did not include as an element the overt act required by section 184. The federal indictment to which Crowson had pleaded guilty had alleged the commission of two overt acts, however. We rejected the People's argument that those allegations were relevant, reasoning that if the allegations were surplusage the defendant had no reason to contest them. We concluded that the Legislature intended that a "least adjudicated elements of the prior conviction" rule (see In re Finley (1968) 68 Cal.2d 389, 392-393, 66 Cal.Rptr. 733, 438 P.2d 381), which we believed governed use of foreign convictions in application of the habitual criminal statute (former § 664), should also govern section 667.5 enhancements. That approach, we reasoned, had been endorsed by the Legislature when it incorporated an element of the offense standard in section 667.5, subdivision (f). (People v. Crowson, supra, 33 Cal.3d at p. 634, 190 Cal.Rptr. 165, 660 P.2d 389.)

[858 P.2d 304] law if the defendant served one year or more in prison for the offense in the other jurisdiction."

Appellant argues, and the Court of Appeal agreed, that the wording of section 667 is so similar to that of section 667.5, subdivision (f) that the electorate necessarily intended that the least adjudicated elements of the offense defined by the foreign statute also govern the section 667(a) enhancement. Under that approach, only the foreign jurisdiction's statutory or common law definition of the offense may be considered to determine if the offense would be a serious felony in California. Only the elements of the offense which must be proved to sustain a conviction of the offense are considered in deciding if the offense "includes all of the elements of the particular felony as defined under California law." (§ 667.5, subd. (f).) " 'Neither the People nor the defendant can go behind those adjudicated elements in an attempt to show that he committed a greater, lesser, or different offense.' " (People v. Crowson, supra, 33 Cal.3d at p. 634, 190 Cal.Rptr. 165, 660 P.2d 389, quoting In re Finley, supra, 68 Cal.2d at pp. 392-393, 66...