People v. Thomas

Citation226 Cal.Rptr. 107,718 P.2d 94,41 Cal.3d 837
CourtUnited States State Supreme Court (California)
Decision Date22 May 1986
Parties, 718 P.2d 94 The PEOPLE, Plaintiff and Respondent, v. James Edward THOMAS, Defendant and Appellant. Crim. 24713.

Daniel Costello, San Jose, under appointment by the Supreme Court, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Eugene W. Kaster, Martin S. Kaye, Ann K. Jensen and David D. Salmon, Deputy Attys. Gen., for plaintiff and respondent.

BROUSSARD, Justice.

Defendant was convicted of rape. Prior to trial, he admitted that he had four times been convicted of burglary, "a serious felony ... within the meaning of sections 667 and 1192.7 of the Penal Code." The trial judge accordingly sentenced defendant to twenty-eight years in prison, eight years for the rape and five years for each of the prior serious felonies. The Court of Appeal affirmed. Defendant's petition for review challenges only the imposition of the serious felony enhancements.

We granted review to consider two issues as to which Court of Appeal decisions have reached conflicting results: (1) When the serious felony is "residential burglary," is an admission of conviction of a burglary "within the meaning of section 667"--without an express admission of its residential character--sufficient to permit imposition of the serious felony enhancement? (2) Is such an admission sufficient when it is not the result of a plea bargain? We resolve both questions in the affirmative, and therefore affirm the conviction and sentence.

Section 667, 1 enacted in June 1982 as part of initiative Proposition 8, provides in subdivision (a) that "[a]ny person convicted of a serious felony who previously has been convicted of a serious felony in this state ... 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 both "rape" and "burglary of a residence."

We considered numerous issues relating to sections 667 and 1192.7 in People v. Jackson (1985) 37 Cal.3d 826, 210 Cal.Rptr. 623, 694 P.2d 736. Jackson was charged with a burglary committed in August of 1982; the information also charged three prior serious felony convictions of second degree burglary, describing each as a "residential burglary." Jackson entered into a plea bargain in which he pled guilty to burglary, admitting the burglary involved entry into a residence, and further admitted one of the prior residential burglaries. He was sentenced to two years for burglary plus a five-year serious felony enhancement.

We first held that the statutory enhancement could apply even though Jackson's prior burglary antedated Proposition 8. The question arose, however, whether the prosecution could prove that the prior burglary was a "burglary of a residence," since Jackson had been convicted of only second degree burglary, and one can commit this crime without entering a residence. We discussed this issue at length and observed that "[w]ith respect to a prior burglary conviction, ... which antedates Proposition 8, proof of the residential character of the burglary encounters obstacles. The record of a conviction for second degree burglary would not prove entry into a residence, even if the pleadings included superfluous allegations to that effect. [Citation.] Moreover, the People could not go behind that record to prove a fact which was not then an element of the crime. [Citations.] ... [p] There is no rule, however, which bars the defendant from admitting that a prior burglary involved entry into a residence, even if the prosecution is unable to prove the allegation. We permit a defendant in connection with a plea bargain to plead guilty to an offense with which he was not charged, and which the prosecution cannot prove, so long as it is reasonably related to defendant's conduct. [Citation.] A defendant should have the same latitude with respect to enhancements; if, as part of a bargain, he finds it advantageous to admit an enhancement which the prosecution may be unable to prove, Crowson [People v. Crowson (1983) 33 Cal.3d 623, 190 Cal.Rptr. 165, 660 P.2d 389] does not prevent the court from giving effect to that admission. [p] ... When a defendant enters into a bargain to protect himself against uncertainty in the law, we see no reason why defendant should not be bound to the terms of his bargain and plea." (37 Cal.3d pp. 836-837, 210 Cal.Rptr. 623, 694 P.2d 736, fn. omitted.)

The present appeal requires us to apply the Jackson analysis. Defendant James Thomas was charged with a rape committed on October 22, 1983. The information further alleged, in four identical paragraphs, "that prior to the commission of the offense charged in Count One herein, the said defendant, JAMES EDWARD THOMAS was, in the Superior Court of the State of California, in and for the County of SANTA CLARA, convicted of a serious felony, to wit: BURGLARY, on charges brought and tried separately, within the meaning of sections 667 and 1192.7 of the Penal Code." A fifth paragraph used the same language to refer to a burglary conviction in Contra Costa County. The district attorney subsequently dismissed one of the Santa Clara County convictions because he could not prove it resulted from "charges brought and tried separately" as required by section 667. The information did not state the date of the remaining convictions, 2 but all of these crimes antedate Proposition 8, and occurred at a time when entry into a residence was not an element of the crime of second degree burglary. 3

Before trial began defense counsel said his client would "admit the prior convictions so that they don't come before the jury in the People's case in chief and so that the jury is not asked to make a determination as to their truth or falsity." 4 The judge agreed to this procedure, and advised defendant that as a result of his admissions, the court could impose an additional five-year sentence for each prior conviction. He then asked defendant as to each prior conviction if defendant admitted that he was convicted of a "serious felony, burglary, on charges brought and separately tried within the meaning of sections 667 and 1192.7 of the Penal Code." Defendant replied, "Yes, I do."

The case was tried to a jury on the rape charge. The victim testified that defendant entered her bedroom at a board and care home for women, threatened to kill her if she made any noise, and then forced her to submit to intercourse. Another resident heard voices and entered the room. Defendant fled, pursued by the manager and two visitors, who caught the defendant a few houses away. Defendant admitted entering the facility, but said his intent was to steal and denied committing the rape. Defendant was found guilty, and sentenced on the rape conviction with four serious felony enhancements.

Defendant first contends that his admission of the prior convictions was insufficient because he did not specially admit that his prior burglaries involved entry into a residence. 5 This is an issue which has divided the Court of Appeal. In People v. Garner (1985) 165 Cal.App.3d 145, 211 Cal.Rptr. 267, the defendant, like the present defendant, admitted that his prior burglaries were serious felonies but not that they were residential in character. The court rejected the inference that by reference to serious felonies under sections 667 and 1192.7, "the pleader intended to allege a residential burglary. While this may be true, we would not discount the possibility that the pleader may have labored under the mistaken belief that all burglaries, whether or not residential, were serious felonies.... [p] Further, even were we to infer that the pleader meant to allege that each prior was residential, he did not do so.... We are unwilling to impute to a criminal defendant the knowledge that the only burglary qualifying as a serious felony is a residential burglary." (Pp. 149-150, 211 Cal.Rptr. 267.) Garner concluded that the defendant's admissions were insufficient to permit imposition of a serious felony enhancement. People v. Kane (1985) 165 Cal.App.3d 480, 487, 211 Cal.Rptr. 628, reached a contrary conclusion, holding succinctly that defendant's admission "constituted an adjudication that the structure burglarized was a residence." (P. 487, 211 Cal.Rptr. 628.)

We also hold that defendant's admission is sufficient, although not for the reason stated by Kane. A burglary does not have to involve a residence to be a serious felony under section 1192.7; that section would also include a burglary in which the defendant inflicted great bodily injury on any person other than an accomplice (subd. (c)(8)), used a firearm (subd. (c)(8)), or used a deadly weapon (subd. (c)(23)). Thus the issue posed by the information is not whether the defendant entered a residence, but whether he committed the burglary in a manner which would render it a "serious felony" under section 1192.7. Defendant's admission concedes this exact issue.

Since there are several ways in which a burglary may qualify as a serious felony, a pleading which alleges only that defendant was convicted of a serious felony within the meaning of sections 667 and 1192.7 may leave defendant in doubt as to the basis of the charged enhancement. The better practice, we believe, would be to allege specifically that the prior burglary was residential, involved use of a firearm or deadly weapon, or the infliction of great bodily injury. The defect in the pleading, however, is one of uncertainty only, and is waived by defendant's failure to demur. ( § 1012; see People v. Ellenwood (1897) 119 Cal. 166, 168, 51 P. 553; People v. Guernsey (1947) 80 Cal.App.2d 463, 466, 180 P.2d 27; People v. Benenato (1946) 77 Cal.App.2d 350, 363, 175 P.2d 296 [disapproved on other grounds in In re Wright (1967) 65 Cal.2d 650, 654-655, 56...

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