People v. Rome

• Citation: 204 Cal.Rptr. 601,158 Cal.App.3d 307
• Decision Date: 13 July 1984
• Docket Number: Cr. 12783
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Eric R. ROME, Defendant and Appellant.

Page 601

204 Cal.Rptr. 601

158 Cal.App.3d 307

The PEOPLE, Plaintiff and Respondent, v. Eric R. ROME, Defendant and Appellant.

Cr. 12783.

Court of Appeal, Third District, California.

July 13, 1984.

As Modified July 17, 1984.

Hearing Granted Sept. 13, 1984.

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, Julia Cline Newcomb, Deputy State Public Defender, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Robert D. Marshall and Ronald S. Prager, Deputy Attys. Gen., for plaintiff and respondent.

SPARKS, Associate Justice.

In this case we add our voice to the already discordant appellate requiem for serious felonies and residential burglaries. ¹ At issue is the construction of Penal Code sections 667 and 1192.7, enacted as part of the Proposition 8 initiative on June 8, 1982, as well as the relationship of those sections to the double-the-base-term limitation of Penal Code section 1170.1, subdivision (g). Parting company from some of our brethren, we hold that the five-year serious felony enhancement for "burglary of a residence," as mandated and defined by Penal Code sections 667 and 1192.7, subdivision (c)(18), must be imposed when it is established that the defendant has previously been convicted of a felonious burglary which occurred in a residence and thereafter is convicted of the same or another serious felony. ² We also hold that Penal Code section 667 repealed the base term limitation of Penal Code section 1170.1, subdivision (g), to the extent that the provisions are inconsistent.

Pursuant to a plea bargain, defendant Eric R. Rome pled guilty to one count of attempted second degree burglary. (Pen.Code, §§ 664/459.) To establish a factual basis for that plea, defendant stipulated that he attempted to burglarize "the residence located at 232 Grace Avenue" by removing the window screen and moulding. He also admitted an allegation that he had suffered one prior conviction for a serious felony, namely a burglary of a residence. (§§ 667, 1192.7, subd. (c)(18).) When asked by the court whether he admitted or denied having previously suffered a conviction for the serious felony of "burglary of a residence," defendant replied: "Admit." (See § 1025.) Defendant was sentenced to the lower base term of eight months for his attempted burglary. His sentence was then enhanced with a consecutive term of five years for his prior conviction for a serious felony under section 667 for an aggregate term of five years and eight months. Defendant appeals contending that neither his present, nor his prior, conviction constitutes a serious felony within the meaning of the statute. He further contends that his total prison term must be limited to twice the base term imposed or to 16 months. We reject these contentions and shall affirm the judgment. ³

FACTS

On the morning of November 15, 1982, defendant attempted to break into the Sacramento residence of Helen Justice. ⁴ A neighbor observed defendant's activity and notified the police. When the police arrived defendant fled but was quickly apprehended. Ms. Justice neither knew defendant nor gave him permission to enter her residence. When she arrived home on the morning of the attempted burglary, she discovered that the weather stripping and screen of her kitchen window had been "ripped off" and her screen had also been cut.

Defendant was charged with attempted burglary in violation of sections 664 and 459. The information alleged that defendant "did willfully, unlawfully, and feloniously attempt to commit the crime of Burglary of HELEN JUSTICE [sic ] located at 232 Grace Avenue, Sacramento, in violation of Section 459 of the Penal Code of the State of California." The information also charged one prior conviction for a serious felony. That allegation states: "It is further alleged that said defendant ... was on and about the 22nd day of January, 1982, in the Superior Court of the State of California, County of Sacramento, convicted of a serious felony offense, Burglary of a Residence, within the meaning of Penal Code sections 667 and 1192.7(c)."

The probation report sets forth the factual basis for defendant's prior conviction. It indicates that defendant and another suspect were reported to police for suspicious behavior on January 22, 1982. The complainant described the two suspects and gave the police the license number of their vehicle. Police located the vehicle and established surveillance. Defendant and his companion were stopped for questioning and in the meantime other officers had discovered a residence which appeared to have been entered. The resident was located and a quick check of the residence revealed a wedding ring missing. Defendant was searched and the wedding ring was discovered on his person. This incident led to a state prison commitment of the lower base term of 16 months for second degree burglary.

After the information was filed on the present offense, defendant sought a ruling from the trial court on the applicability of the twice-the-base-term limitation of section 1170.1, subdivision (g) (formerly subd. (f)), on an enhancement imposed pursuant to section 667. The trial court ruled that the limitation did not apply to enhancements for serious felonies under section 667, but expressly provided that its ruling was tentative and without prejudice to defendant to raise the issue at a later time. Plea negotiations then led to an agreement under which defendant would plead guilty to the crime charged and would admit the prior conviction as alleged in the information. The People also agreed to recommend the imposition of the lower base term for the crime of attempted burglary. Defendant then pled guilty to that crime. ⁵

Defendant again filed a motion for a ruling with regard to the applicability of the twice-the-base-term limitation. When the matter came on for sentencing defendant and the People agreed that the plea bargain was without prejudice to raise this issue, but that in the event the trial court should agree with defendant that the limitation

applied then the plea agreement for the lower base term would not be binding on the district attorney. The trial court, however, once again rejected defendant's argument. Defendant was sentenced to the lower base term of eight months for the attempted burglary, and received a consecutive enhancement of five years for the prior conviction of a serious felony. In imposing the lower base term for the primary offense the trial court indicated that one of the reasons it was doing so was the severity of the enhancement imposed for the prior conviction.

DISCUSSION

I

Before discussing defendant's contentions, it is necessary to set forth an overview of the statutory and constitutional provisions involved in this appeal. The basic determinate sentencing scheme contained in sections 1170 and 1170.1 is by now well known. For most felony offenses the Legislature has provided three possible prison terms and the trial court, if it imposes a prison sentence, must select one of these terms depending upon whether it finds factors in aggravation or in mitigation. (§ 1170, subd. (b).) To the principal term the sentencing court adds any appropriate enhancements in determining the total unstayed prison term. (§ 1170.1.) When determinate sentencing was initially adopted by the Legislature in 1976, the scheme for imposing enhancements was relatively simple. The possible enhancements included those specifically related to the crime charged, such as the use of a firearm (§ 12022.5), being armed with a firearm or using a deadly weapon (§ 12022), taking, damaging or destroying property (§ 12022.6), and the infliction of great bodily injury (§ 12022.7). (See Cassou and Taugher, Determinate Sentencing in California: The New Numbers Game, (1978) 9 Pac.L.J. 5, 23.) There were also general enhancements which related to other crimes committed by the defendant. These included prior felony convictions and prison terms (§ 667.5), and consecutive sentencing (§ 1170.1). (Id., at p. 23.)

In the original version of the determinate sentencing law, section 667.5 provided for enhancement due to prior convictions. This section did not apply unless the defendant had served a prior separate prison term for his prior conviction. (§ 667.5, subd. (e).) The term of the enhancement was one year unless both the new offense and the prior offense were "violent felonies", in which case the enhancement imposed was three years. (§ 667.5, subds. (a) and (b).) Subdivision (c) of section 667.5 defined the term "violent felony." These felonies included six specific crimes, any crime punishable by death or life imprisonment, and any other crime in which the defendant was charged and proved to have inflicted great bodily injury or to have used a firearm.

The original version of section 1170.1, subdivision (f), also limited the total term of imprisonment imposed to twice the base term selected unless the defendant was convicted of one of the violent felonies listed in section 667.5, subdivision (c), or he was convicted of a crime while imprisoned in a state prison or subject to reimprisonment for escape from state prison, or an enhancement was imposed pursuant to sections 12022, 12022.5, 12022.6 or 12022.7. Although this provision has been amended and renumbered, its substance remains. Subdivision (g) of section 1170.1 presently limits the total term of imprisonment to twice the base term unless the defendant stands convicted of a violent felony as defined in section 667.5, subdivision (c), he committed his crime while confined in state prison or subject to reimprisonment after escape from state prison, an enhancement is imposed pursuant to section 12022, 12022.5, 12022.6 or 12022.7, or the defendant stands convicted of felony escape from an institution in which he is lawfully confined.

In the years since the Legislature adopted determinate sentencing for California, it has frequently revised the basic scheme to...