People v. Cruz

S046075.Aug. 1996.] [No. PEOPLE,

THE Plaintiff and Respondent, CRUZ,

KERMIT VARGAS Defendant and Appellant.

Counsel O’Connell, A. Roger Stoll and J. Bradley under the Su- appointments by Court, for Defendant preme and Appellant. Williamson, General, Chief Assistant Attorney George

Daniel E. Lungren, Bass, General, General, Assistant Catherine A. Attorney Ronald A. Attorney General, Rivlin, for E. Niver and Bruce Ortega, Deputy Attorneys Ronald Plaintiff and Respondent.

Opinion us is that the defend

GEORGE, C. before whether The question proof J. ant conviction for first degree burglary adequately proved suffered as defined Penal the truth of a serious enhancement felony allegation 1192.7, (c)(18) (section 1192.7(c)(18)).1 Section Code section subdivision of sentence enhance 1192.7(c)(18) defines serious felonies for the purpose house, or coach ment as trailer including “burglary Code, as defined Vehicle or inhabited other building portion bur . . .” The the definition of first degree . quoted language duplicated in effect at the time section last was amended in 1986. glary 489, 1, (Stats. 1192.7(c)(18)]; Stats. ch. ch. [section § 1297, 1, “the” its use word 460—differing only [section § however, added the before “inhabited portion”].) of. . . vessel. . . which is inhabited and designed phrase “burglary [a] (Stats. 460. habitation” to the definition of first degree burglary 357, 3, 1475-1476, 1, 1989, Jan. ch. eff. pp. § burglary The Court of concluded that of a first Appeal proof degree 460, after the conviction under section based a committed upon amendment, effective of the does not that a date prove adequately a for the defendant has committed serious previously felony purpose 1192.7(c)(18), because of the diver- sentence enhancement under section We that with the 1989 amendment. began between the two sections gence a “inhabited house” is dwelling As we shall disagree. explain, phrase broad, The circumstance inclusive term that includes an inhabited vessel. of first statutory degree burglary amended the definition vessel, 460, inhabited does not in section to include an explicitly burglary broad, inclusive term “inhabited house” us to require interpret 1192.7(c)(18). We in a narrow fashion when the term appears conclude that the defendant convicted of a first degree that was proof vessel, ade- include a crime burglary, a the truth of a serious enhancement based quately proves felony upon of an inhabited dwelling.” conviction previous “burglary statutory 1All references are to the Penal Code unless otherwise indicated.

I In convicted defendant of two counts of second jury 211, 212.5, (§§ (b) (c)]), former subd. and robbery subd. one count [now (a)). of a firearm an ex-felon also (§ subd. possession jury found true the allegations that defendant used a firearm in committing 12022.5, trial, (§ (a).) robberies. subd. In a bifurcated a second jury found true that defendant had allegation suffered a serious convic- prior felony tion in for a first that occurred in degree burglary (§§ 1991. subd. ,(a) 1192.7(c)(18).) In a another convicted separate proceeding, jury defend- ant one count of for a subd. escape (involving custody felony; § (b)), an that occurred after escape defendant was on the arraigned robbery another charges. yet the court revoked separate proceeding, defendant’s for the first probation 460). conviction degree burglary (§§ He was sentenced on all matters a total term of twelve simultaneously, receiving months in state years eight which included prison, enhance- five-year for the ment 1992 first conviction. degree burglary Defendant and the appealed, Court of his motion for Appeal granted consolidation of the separate below. Defendant proceedings claimed on that there appeal was insufficient evidence to establish a serious prior felony conviction within the (a), sections meaning subdivision 1192.7(c)(18), and that the trial court had failed to instruct the on jury fully the elements of this enhancement. He conviction could have argued prior been for of a vessel under section a crime he claims would not be a serious prior conviction felony 1192.7(c)(18). under section He also claimed there was instructional error at trial.

The Court of Appeal agreed proof degree burglary conviction provided insufficient evidence that the conviction involved prior as burglary defined 1192.7(c)(18). section by The court vacated the five-year 667, enhancement under imposed (a), subdivision remanded the matter for without resentencing, defendant’s claim of reaching instructional error.2 review,

The People petitioned for substantial evidence claiming supported the jury’s on the sentence finding enhancement under a allegation proper of the reading relevant statutes. light 2In of our judgment reversal of the of the Appeal, Court of the claim of instructional

error should by be considered that court on remand.

II

A. for a sentence enhancement for defendants who Section 667 provides 667, of a subdivision have been convicted serious Section felony. previously (a), in convicted of a serious provides pertinent part “any person felony who has been convicted of a serious in this state or of felony any previously in which all of offense committed another includes the elements jurisdiction receive, shall in addition to the sentence serious any felony, imposed by offense, the court for the enhancement for each such present five-year prior (a)(4) conviction on and tried Subdivision charges brought separately.” subdivision, “As in section 667 that: used this ‘serious provides felony’ (c) means a serious listed in subdivision of Section 1192.7.” felony 1192.7, (c), Section in “As used in subdivision provides pertinent part: section, this ‘serious means . . . felony’ any following: [<fl] house, of an or defined burglary dwelling inhabited trailer coach as by Code, Vehicle or inhabited other portion any building.” crime is divided into For some section 460 burglary degrees. years, in that: of an inhabited provided pertinent part “Every burglary dwelling Code, house or coach trailer as defined the Vehicle or the inhabited committed other . . . .’’is portion building nighttime burglary of the first and that other kinds of are of the second degree, “[a]ll 1978, 579, 23, Indeed, (Stats. 1985.) ch. since our law has degree.” p. § crime with other be committed in provided, qualifications including of an “inhabited house” is a first nighttime, dwelling degree 1923, 362, 1, 1982, (Stats. ch. burglary. p. § removed the that first must occur in the qualification 4774; (Stats. ch. Stats. ch. nighttime. § § case, 4786.) Of to this particular import Legislature again section, amended, amended the effective As the section January 1990. Thus, added a reference to inhabited vessels. at the time defendant commit ted the 1991 offense of “1. burglary, provided pertinent part: house, vessel, in the Every burglary defined Code, habitation, Harbors and which is inhabited and Navigation designedfor Code, or trailer coach as defined the Vehicle or the inhabited portion other of All of building, the first 2. other kinds burglary degree. [<JD

771 1989, 357, 3, 1475-1476, (Stats. ch. degree.” are of the second burglary pp. § added.)3 italics

B. Court The noted that enhancement Appeal properly allegations 293, (1995) 312 must be v. Wims 10 Cal.4th (People pleaded proved. [41 241, 194, 77]; P.2d v. 46 Cal.3d Cal.Rptr.2d Hernandez 850, 1013].) A conviction estab Cal.Rptr. judgment lishes elements of the crime involved necessarily adjudicated conviction, fact, for the of enhancement trier purpose allegations. however, look beyond judgment the entire record of the prior conviction to determine whether the offense involved conduct previous required establish the truth of the enhancement allegation. (People 343, 354, 688, Guerrero Cal.3d 748 P.2d 1150].) rules, these

Applying the Court of held that of defendant’s Appeal proof conviction for a 1991 violation of did not section 460 adequately prove serious prior 1192.7(c)(18). conviction under section felony Court of 1991, observed that in when Appeal defendant committed first degree section burglary, 460 defined the crime as specifically including burglary an inhabited vessel.4 The Court of out that the Appeal pointed applicable definition of as a serious burglary under section did not felony state that it included specifically of an inhabited vessel. The burglary definition of statutory first degree under section the court burglary reasoned, is broader than the definition of the serious felony burglary under 1192.7(c)(18). section that defendant has Accordingly, proof suffered first prior degree conviction the commission of a crime may prove that is not included in the narrower definition of contained such, 1192.7(c)(18). section As conviction does not proof necessarily demonstrate that defendant committed the offense referred into 1192.7(c)(18).

The Court of also Appeal considered the record to determine whether there was other had proof defendant committed an offense as defined by 1192.7(c)(18). It noted that at the trial on the conviction prior felony amended, again 3Section 460 January was effective The amendment added 1992. home, “floating (d) as defined in subdivision Safety Section 18075.55 of the Health and (Stats. 1991, Code” to the definition of burglary. ch. As the Court of § out, Appeal pointed defendant’s conviction reflects the offense he as defined at the time crime, committed the “floating language when the home” was not included in section 460. 4Throughout opinion, we refer to section amended in unless otherwise (See 1475-1476.) indicated. Stats. pp. ch. § clerk’s minutes of the proceedings offered the allegation, prosecutor defendant had plea, reflecting his change which defendant entered (now subdivision 1 former to sections 459 violating pleaded guilty “(First as Burglary— the offense (a)), Degree subdivision and describing addition, a of the Information.” Residential) as set Forth in Count One . . of “violation of . that defendant was convicted order noted probation document, Another (*First section Degree Burglary-Residential).” 459-460.1 Choice,” Sentence, noted or Other Sentence entitled “Report—Indeterminate burglary. of first degree had been convicted by guilty plea that defendant re- was the person officer testified that defendant Defendant’s probation or copy No hearing transcript ferred to in the order. preliminary probation information was offered. did not demonstrate concluded that this evidence The Court of Appeal whether, instead, vessel, or was of an inhabited whether the burglary 1192.7(c)(18). The court held that definition of section fit the burglary “residential” did not adequately was burglary evidence previous is, 1192.7(c)(18), a section to one defined by narrow offense vessel, term because the of a residence other than an inhabited is a broad term that would include “residential” Therefore, to support the court found the evidence insufficient vessel. We review granted to the truth of the enhancement allegation. as finding was correct. whether the Court of conclusion consider Appeal’s Ill 1192.7(c)(18) to deter- of section

We examine the language history supports whether of a violation of section adequately mine proof allegation. as to the truth the enhancement finding 1192.7(c)(18) as the voters part Propo- In June adopted 8. initiative enacted sections 667 and 1192.7 provide sition That “serious felonies” as enhancement for offenders who commit sentence repeat (1985) 37 Cal.3d v. Jackson (People enumerated section 1192.7. “serious felonies” 736].) most of the Although offenses, defined criminal in section 1192.7 referred to specific, listed electorate, not. did 1192.7(c)(18), as enacted originally residence,” Rather, enacted, of a it a serious felony “burglary listed as elements of any we noted “does not to the term correspond precisely Jackson, 37 Cal.3d at p. offense.” (People criminal then-existing as seri- of a residence We that the electorate treated explained that such on the premise as the violent felonies listed section 1192.7 ously

773 who persons are so commit burglaries inherently dangerous repeatedly of offense be as harshly this should violent recidivists. type punished Jackson, 832.) In v. 37 Cal.3d at order to out the (People supra, p. carry conduct, 1192.7(c)(18) we electorate’s intent deter such construed section offenses, “as not to criminal but to the criminal conduct referring specific 832; (37 (1993) described therein.” Cal.3d at see also v. 5 p. People Myers 1193, 911, Guerrero, 301]; Cal.4th 858 v. People 1199 P.2d Cal.Rptr.2d [22 347-348.) 44 Cal.3d at supra, pp. 1986, 1192.7(c)(18) (Stats. amended section ch. Legislature in 1986.

489, 1, residence,” reference to of a p. Deleting “burglary § Legislature substituted the current language: “burglary house, Code, or trailer coach as defined Vehicle or inhabited (Ibid.) other portion This matched the definition any building.” language 1982, of first 1297, then (Stats. contained in section 460 ch. 1, 4786 for the nonsubstantive difference of an article except [identical § which, comma]), seen, and a as we language have no longer contained requirement occur in the nighttime. The 1986 amendment 1192.7(c)(18) section reflects an evident intent to legislative correct the Jackson, 826, we anomaly is, identified in v. People 37 Cal.3d that the term of a residence” did not “burglary refer to any specific, identified 1439, offense. (1989) v. Harrell (People 207 1445 Cal.App.3d Cal.Rptr. [holding 1192.7(c)(18) [255 that the amendment to 750] section was intended to make it consistent with the definition of first degree burglary].)

Legislative history the view that supports amended 1192.7(c)(18) in order to prevent any misunderstanding, by conforming the language of section to the definition of first degree Thus, burglary. on Assembly Committee Public Safety’s of the bill analysis stated that differences in between wording 1192.7(c)(18) and other provisions the Penal Code had led to confusion cases, “in and some require special in order to findings 8 apply Proposition (Assem. enhancements.” Com. on Pub. on Assem. Bill Safety, Rep. No. (1985-1986 Sess.) 3733 1.)5 Reg. Far from from the electorate’s departing “ intent, original the bill was designed 1192.7(c) ‘conform Penal Code § 5As we explained, have “it is well reports legislative established that committees and commissions are part legislative of a history statute’s be considered when the meaning (See of a statute is Southern Cal. Gas Co. v. Public Utilities Com. (1979) uncertain. 24 Cal.3d People 1149]; Cal.Rptr. (1950) 659 [156 v. Knowles 596 P.2d 35 Cal.2d 1]; 182 Southern Pac. Co. v. Ind. Acc. Com. P.2d (1942) [217 19 Cal.2d 278-279 Services, 880]; Planned Protective Inc. v. Gorton (1988) [120 Cal.App.3d 15 [245 790]; Cal.Rptr. 272]; v. Maben Cal.App.3d Martinez Cal.Rptr. Superior Court Cal.App.2d 439].) United States

to the . . . Penal Code appropriate provisions delete those acts that do not relate to a current Penal Code easily . . specific provision. . This would differences, end confusion caused while true to the intent keeping ” (Assem. of the electorate.’ on Com. Pub. on Bill Safety, Rep. Assem. No. (1985-1986 Sess.) 1.) 3733 Reg. p.

The Senate to the analysis provided Senate Committee on Judiciary reflects the same that the bill’s understanding was “to correct purpose deficiencies in the drafting 8 initiative Proposition thereby conforming serious definition felony of that to related provision Penal Code definitions.” (Sen. Com. on (1985-1986 on Assem. Bill No. Judiciary, Rep. 3733 Reg. Sess.) 4, 1986, 2; Com., as amended June see also Sen. Rules on Rep. Bill (1985-1986 Sess.) 4, 1986, Assem. No. 3733 Reg. amended June 2p. . . the amendments are proposed [“. intended to conform Penal Code Sec- tion of the 1192.7(c)—part 8 Proposition Penal package—to appropriate Code provisions.”].) evident,

As is the Legislature 1192.7(c)(18) amended section for the it purpose 1192.7(c)(18) clear that section making would include then encompassed by of section 460. existing language No intent to narrow the appears of the application of a residence” “burglary Harrell, serious enhancement. As felony the court stated in v. People 1439, 207 the amendment Cal.App.3d was intended as a simply clarification (Id. existing at provision. of section language 1192.7(c)(18) has not been altered since 1986. It that appears, accordingly, those that were burglaries intended to be treated as serious felonies virtue of the 1986 amendment of section should continue to consti- tute serious felonies for the purpose that provision. in mind the

Keeping intent of the electorate and the in Legislature enacting amending 1192.7(c)(18), we consider the meaning is, the words the Legislature chose to employ, “inhabited phrase house.” The fundamental task of construction is statutory to “ascertain the intent of the lawmakers so as to effectuate the purpose Supreme long Court has followed a practice using similar in reports committee as an aid in (See construing legislation. (1962) 499, federal Commissioner v. Bilder 369 U.S. 502-505 [8 65, 68-69, 881]; Wright 440, 463, L.Ed.2d v. Vinton Branch (1937) 82 S.Ct. 300 U.S. 8 fn. [81 736, 744, 556, 1455].) L.Ed. 57 S.Ct. 112 A.L.R. considering rationale for committee reports interpreting when statutes is similar considering to the rationale for voter materials when construing an initiative measure. both cases it is reasonable to infer that those who actually proposed voted on the measure read and considered the presented materials it, explanation of and that the provide materials therefore some indication of how the measure (Hutnick was understood at the time Fidelity v. United States those who voted to enact it.” Guaranty & 456, Co. 465, 1326].) 47 Cal.3d Cal.Rptr. fn. 7 [253 763 P.2d

775 intent, examining we determine begin by In order to this law. [Citations.] (1991) 52 898 Pieters Cal.3d (People of the statute.” the language be 420].) of a are The words statute Cal.Rptr. [276 have been understood they in the in which would sense interpreted (1996) (Resure, Cal.App.4th Inc. v. Court Superior time of the enactment. 354]; (1967) v. Fair Cal.App.2d Cal.Rptr.2d [49 v. Fair 632]; Dist. Community College see also Peralta Cal.Rptr. & Com. 52 Cal.3d Employment Housing determining little weight 801 P.2d of later 357] [declaration the legis We Legislature].) the relevant intent of the enacting presume 1192.7(c)(18), enacting lators were aware of the law burglary they employ. and of chose judicial interpreting language decisions 1142, 1155 (See (1991) 52 Harris v. Growth Investors XIV Cal.3d Capital 831, 614, 873]; (1975) 14 Cal.3d 805 P.2d Estate Cal.Rptr. [278 ofMcDill 754, 874].) 537 P.2d 837 Cal.Rptr. [122 1986, 1192.7(c)(18) in no At the time the amended section decision had the question in California addressed published specifically whether of an inhabited vessel constituted burglary “burglary 460, of section house” for then dwelling existing provisions purposes to render so as such an offense Cases degree burglary.6 interpreting however, 460, made it clear “inhabited house” had dwelling term that this term be construed to effectuate legislative purposes should statute, one’s to underlying namely, protect peaceful occupation Thus, had our law stems from recognized residence. the courts burglary the common law to the residence. policy providing heightened protection 773, 709, 542 (1975) v. Cal.3d (People 15 712-713 Cal.Rptr. [125 Gauze 1365]; (1969) P.2d v. Lewis 274 People Cal.Rptr. 917 Cal.App.2d [79 650]; see also (1983) v. Guthrie 144 847 Cal.App.3d People [193 54].) to continued receive Cal.Rptr. occupied heightened dwelling under our statutes in order avoid the increased danger to protection violence used as attendant an into a “building currently personal upon entry Lewis, and (People v. 274 sleeping living supra, Cal.App.2d quarters.” 921.) As the court in Lewis is to react “a more explained, person likely to of his than to of other violently living quarters places burglary because in the him are to be former case close to more persons likely him, because and threatened is more likely belong present, property because the home sanctuary, is as a usually regarded particularly private (Id. as an have even extension of the at Courts person.” specifically is distinction between first and second recognized degree burglary at 6One case did affirm a cabin cruiser a second conviction night, charged proved as but the case does not discuss whether the could have been crime (People Holt (1948) 58].) degree burglary. Cal.App.2d a first 42 [198 v. 88 776 of violence is injury danger personal upon perceived

founded invaded. v. Parker 175 is (People involved when a residence Lewis, 284]; v. People supra, Cal.Rptr. Cal.App.3d [223 vessels, 920-921.) to inhabited This extends Cal.App.2d pp. policy course, inherent an violence in the invasion of because the danger If, as other living quarters. vessel is the same as that attending any inhabited established, an such as an attached not having the case law has areas garage (see (1984) into the house v. Moreno People Cal.App.3d entrance two 17]), whose had been absent for or a house owner Cal.Rptr. [204 (1983) 143 800-802 (see v. People Marquez Cal.App.3d years the law of 193]), within the above stated informing are policies Cal.Rptr. be, vessel would as it seems clear that an inhabited burglary, first degree well. “inhabited that the term

More courts have explained technically, live and which where ordinarily house” means “structure dwelling people A an is place used for currently dwelling purposes. [Citation.] being if with uses the rights place inhabited person possessory v. so in the future.” (People to continue intending doing sleeping quarters 612]; see Fleetwood 987-988 Cal.App.3d 838; Guthrie, v. Cardona at p. also People Cal.App.3d 109]; 481, v. Allard (1983) 142 484 Cal.Rptr. Cal.App.3d [191 591, 182].) (1929) dwelling P. The term “inhabited 592 Cal.App. 99 [279 broad, definition considered a inclusive house” for has been many years 444], (1986) 1187 v. Grover 177 Cal.App.3d (People was cited), in of whether the dwelling and cases and has been terms analyzed Witkin, (See Against Crimes Crimes as a residence. 1 Cal. used being or building— house dwelling place—whether Property, [“The § of the common makes relevant some must be inhabited. This requirement Thus, kind of it be any on house. can dwelling law decisions and distinctions Comment, habitation.”]; Law—Development Criminal structure if used as a (1951-1952) 25 So.Cal.L.Rev. Law Burglary California to section 460 defining that the amendment 100-101 [declaring house, caused as into an inhabited dwelling degree burglary part entry law, with its special law more to resemble common closely California 1980) home]; (14th Law ed. 3 Wharton’s Criminal protection § it is a house even though structure as a dwelling 207-208 qualifies pp. [“A home, of sleeping.” so as it is used for regularly purpose makeshift long dis marine environment (Fn. omitted.)].) in an inhabited vessel’s Nothing a vessel’s Certainly, in the term. it from other structures included tinguishes to the same its character as an inhabited should entitle dwelling occupants other residence. and violence as is accorded any from intrusion protection a with possessory Because an inhabited vessel is one occupied by “person Fleetwood, (People as sleeping quarters” “uses the place who rights” a of such the nature 987-988), and because Cal.App.3d pp. as other occupancy in peaceful the same interest rise to vessel gives in the term “inhabited habitation, included vessels were believe inhabited we house.”7 that for the purpose addition, section 459 has explained since contained, the the section is (entitled in which “burglary”) the entire chapter for dwelling purposes, used being means “currently term “inhabited” would encom- certainly Such a definition (§ or not.” whether occupied habitation. a designed vessel pass enumerated vessels are that because argument

We defendant’s reject mobile, rather 459,8 be they may and because not in section but established fixed, section 460 was to exclude vessels from than an intent the Court of is based upon amendment. This argument before the 1989 v. Moreland Cal.App.3d decision in People Appeal’s case, whether a recreational the court considered In that Cal.Rptr. 118]. house or occupied of “inhabited dwelling came within the definition vehicle person prohibits as it in section provision building” appeared After concluding of habitation. a firearm into certain types from discharging the fore- suggested to this section strongly of amendments history vehicles, court rejected recreational did not include going phrase should be interpreted contention that these terms General’s Attorney The court conceded have been construed in section 459. broadly, they been inter- in section 459 have the terms “house” and as used “building” been so but that section 460 had not interpreted very broadly, opined preted subject to a dwelling house” is the view that the term “inhabited 7Later authorities confirm Legislature to the rely they them were not available interpretation, broad but we do not on as 1483, People (1992) v. Wilson (See Cal.App.4th 11 was amended. when section house]; People (1989) v. Wilson dwelling Cal.Rptr.2d qualifies as inhabited 1488 [15 77] [tent 611, boarding house [holding bedroom within Cal.App.3d Cal.Rptr. 615 locked 208 422] house, traditionally analyzed first dwelling observing that “courts have is inhabited and ”]; People being dwelling used as a residence’ degree burglary ‘in of whether was terms Deay 280, establishing (1987) [collecting cases Cal.App.3d v. 284 [239 406] 194 dwelling degree burglary in terms of whether consistently analyzed first that “courts have 325, 1995) (15th residence”]; Law ed. 3 Criminal being § was used as a see also Wharton’s law]; purpose of dwelling may fishing vessel p. [noting that house be a 256 building 425, 449, for the [noting cabin is a 16 that a houseboat Annot. 68 A.L.R.4th § 498, statute]; burglary].) id. subject p. at 70 cabin purpose of a [vessel § room, house, any part: “Every person who enters provides pertinent 8Section in 459 stable, warehouse, store, mill, bam, building, tenement, other outhouse or shop, apartment, home, Code, tent, vessel, floating Navigation and as defined in Section 21 of the Harbors car, Code, (d) Safety railroad of the Health defined in subdivision of Section 18075.55 burglary.” guilty . . is cargo coach . . house car . or sealed container. . . trailer . locked 942, 1991, 14.) (Stats. floating in ch. Reference to homes was added 1991. § 778 21.) The court declared a “reasonable (81 at that p.

broadly. Cal.App.3d vehicle is enumerated be that because recreational inference” could drawn (as car”), but not defining burglary, specifically in section 459 a “house in “inhabited in section it is not included the term dwelling enumerated 21.) (81 at as contained in section 460. Cal.App.3d p. house” would conclude from v. People We do not believe that Legislature Moreland, 81 that structure listed any supra, Cal.App.3d enumerated in section 460—was excluded from not specifically 459—but did not to establish such a the latter section. The Moreland opinion purport reasonable, rule, structures broad nor would such a rule be at all since many in section most that are enumerated in section but not mentioned 459 “tenement,” “room,” have been understood as long notably “apartment,” Fleetwood, (See v. People included in the term “inhabited house.” dwelling 988.) at supra, 171 Cal.App.3d p. Moreland, People supra, Cal.App.3d

As for the claim that v. fixed to the be considered an establishes that a structure only ground house,” under- “inhabited and that the so must have dwelling decided, we that stood section 460 after the Moreland was reject opinion and find no for it in the Moreland itself. That opinion claim support opinion had observed that cases section 459 merely interpreted interpreting observations) the absence of re- any statute other broadly, noting (among (81 entered be fixed to at realty. Cal.App.3d p. structure quirement 21.) The then the one case it was able to find that suggested court contrasted Moreland, v. (People supra, a narrower of section 460. interpretation clear, 21.) later cases made it at As we have Cal.App.3d. p. explained, however, used in section like those used terms Grover, v. (People supra, are broad subject interpretation 1187; Fleetwood, at see also v. People supra, Cal.App.3d Cal.App.3d p. Guthrie, 838; 987; v. People at at p. supra, Cal.App.3d p. Cardona, Nor have we found case Cal.App.3d that an inhabited house must be set on a foundation indicating order to be the additional to the subject protection provided by punishment (See (3d ed. set forth under section 460. Perkins & Criminal Law Boyce, 1982) 256 of abode is a house’ for purposes regular place ‘dwelling [“A moreover, it to a even if is on wheels and not restricted burglary, particular that a but see Annot. 78 A.L.R.2d 780 [asserting locality.”]; land].) ais structure erected “building” upon (decided case either to or we have not found California Although prior amendment) to has discussed the issue the 1986 subsequent precise an “inhab- whether of an inhabited vessel constitutes a of burglary burglary house,” cases broadly ited of the California dwelling reasoning prior in as used section 460 fully the term “inhabited house” dwelling interpreting of an inhabited vessel would consti burglary the conclusion that supported Furthermore, of that statute. although within the burglary meaning tute to of an inhabited vessel of the of section 460 burglary question application California, Court had been the Minnesota Supreme had not yet presented cabin is a burglary held several earlier that of a houseboat burglary years “ a defined as a or other where the statute “building,” “building” ‘dwelling ” (State Vreden structure suitable for shelter for human affording beings.’ 406, 406-407; (Minn. 1978) v. State berg 264 N.W.2d see also Shoemaker (Alaska 1986) vessel is 716 P.2d Ct.App. [burglary fishing where statute defines as a burglary dwelling, dwelling building designed home, vessels].) for or used as a and defines to include building We assume that when the electorate enacted the properly 1192.7(c)(18) five-year enhancement in sections 667 and for seri provided offenders, ous felonies committed it was to the same by repeat responding concern—that of a residence was to escalate into violence— burglary likely And, in the above cases of section 460. expressed interpreting language shown, we have 1192.7(c)(18) at the time the amended section to conform its to the definition of first contained provisions degree burglary in section it shared the electorate’s intent to deter recidivism involving (1) such a crime. dangerous California Accordingly, light prior cases term of section broadly interpreting “dwelling house” purposes is, (that this legislative objective statutory underlying language recognition increased and of a residential danger gravity burglary), the out-of-state cases similar to include construing language vessel, of an inhabited we believe the term “burglary house,” dwelling 1192.7(c)(18) when into section incorporated of an encompassed burglary inhabited vessel. Because the language section has remained since it follows that the unchanged house,” section, of an phrase “burglary inhabited as used in that dwelling Thus, continues to include an inhabited vessel. an individual who has suffered a conviction for of an inhabited vessel has sustained conviction of a “serious that will enhancement felony” five-year support under section 667. conclusion, this arguing against defendant relies the amendment upon section 460

to enacted in three after the enactment of the years noted, relevant 1192.7(c)(18). of section provisions As this amendment section included inhabited expressly vessels within the ambit of first of) Defendant degree burglary. (and as a result this urges subsequent amendment, the term “inhabited house” must be a more given restrictive meaning, so as to exclude vessels from the of both provisions 1192.7(c)(18). statute, the Although required. no such interpretation

On the face of vessels the inclusion vessels makes explicit to inhabited added reference law, it does not burglary the first by degree protected the habitations among “inhabited house” inclusive term that the the conclusion compel conclude anomalous to It would be narrowly. be read more thereafter must of first the definition to narrow general intended thereby the Legislature habitations are equally that marine while it making explicit burglary, degree be even more It would from criminal intrusion. under the law protected the intended to restrict scope that the Legislature to conclude anomalous it making while burglaries, for first degree enhancements serious felony the same extent vessel to of an inhabited intended to burglary clear it punish that the Legis- no indication We discern other first degree burglary. as any lature, that section 460 to in amending specify to the task of to intended put prosecutors is first degree burglary, vessel obtained conviction (perhaps that a prior demonstrating inhabited earlier) involve an did not many years in a distant jurisdiction, home), a floating was amended to (or, the statute later provide, vessel as felony serious defendant had incurred prior to in order prove conviction. amendment, indi of the 1989 to the legislative history

Defendant points already 460 did not punish informed that séction was cating Indeed, the burglary.9 as a first degree of an inhabited vessel informed the so and other sources apparently Counsel’s Digest Legislative (1989-1990 Reg. Bill No. 162 Counsel’s Assem. Dig., (Legis. Legislature. (1989-1990 Reg. Bill No. Sess.); 3d of Assem. analysis Assem. reading (1989- No. 162 2; on Assem. Bill Com. on Sess.) Judiciary, Rep. Sen. do introduced, 1-2, declarations these Sess.) Obviously, Reg. pp. function. law, is a of law judicial the force of for the interpretation not have (1994) 22 System Retirement v. Public Employees’ Sacramento (City of bound, 786, 545].) accordingly, We are not Cal.Rptr.2d Cal.App.4th the amendment when to the Legislature, misinformation delivered by “inhabited dwelling intent to narrow the definition itself showed no house.” legislative staff various letters and judicial notice of 9The have us to take asked legislative staff judicial we take notice of analyses legislation. request related this 459; Comp. Code, 452, v. Workers’ (Evid. DuBois analyses granted. in this connection is §§ 978]; Cal. Gas Southern

Appeals (1993) Bd. Cal.Rptr.2d 853 P.2d 5 Cal.4th 393 [20 1149].) P.2d Com. Co. v. Public Utilities 24 Cal.3d 659 [156 however, legislation. proponents the individual views rely, We do not on evidence of Cal.Rptr.2d Mercury Casualty (See fn. 5 Co. 11 Cal.4th Quintano a letter received 1057].) judicial notice of Accordingly, deny request we take introduced, bill, of a requesting that such a bill be legislator introduced the who Governor, bill. approve he urging proponent sent of the bill to letter

781 or understanding, reflect the Legislature’s these sources To the extent of the reach that it was misunderstanding, expanding accurately, more of burglary that that statute in to provide 1989 460 when it amended this circum burglary, be treated as first degree should an inhabited vessel the scope or narrowing for restricting does not afford any justification stance to 1192.7(c)(18), so as of section enacted of the provisions previously of burglaries the category inhabited vessel from of an exclude course, established, of It is well 1192.7(c)(l8). covered to amendment is intended simply that an when the declares Legislature statute, a declaration such version of a the of a “clarify” meaning preexisting (See, e.g., the earlier version. determinative as to meaning is not Com., & Housing Employment Dist. v. Fair College Peralta Community Because weight”].) are “of little declarations 52 Cal.3d 52 supra, [such function, court, a is a judicial of the of statutes meaning the determination version, still of the earlier determining scope faced with the question and considerations circumstances from all the pertinent must ascertain modification or constitutes a amendment actually whether subsequent v. (Ibid.; see also Harris a clarification of the preexisting provision. instead XIV, at fn. [noting 52 Cal.3d p.1158, Growth Investors Capital to the intent of the are not as binding declarations legislative subsequent statute, has no that the Legislature and observing that enacted Legislature (1982) 135 statute]; Del Costello v. State authority interpret of California 887, 893, has no Legislature fn. 8 Cal.Rptr. Cal.App.3d 582] [the [185 enactment]; but see Eu v. to declare what it meant an earlier authority 546 P.2d (1976) 16 Cal.3d 289] [such Chacon of earlier evidence statement is not but binding, may supply legislative (1947) 31 Cal.2d intent]; Com. Payne etc. Emp. legislative California [same]; v. Public Employees’ 213-214 Sacramento City 702] System, supra, Retirement Cal.App.4th of an to determine the scope when a court is called By analogy, upon statute, that its Legislature’s assumption version of an existing earlier be cannot amendment an of an earlier provision current represents expansion circumstances, must a court still determinative of the Under such question. its function relevant considerations in performing examine all of the For the of the preexisting provision. deciding proper interpretation above, of section language reasons we conclude the preexisting explained should be 1192.7(c)(18) in properly as into section incorporated vessel. interpreted having encompassed of the amend- the overall This conclusion is consistent with purpose of that amendment history ment to section 460. Nothing legislative reach of the restrict the intended to remotely suggests exclude an of section then existing provisions Indeed, would conflict such a restriction vessel from the statute. inhabited amendment fundamental legislative purpose with the directly 460, vessel be treated of an inhabited burglary by requiring section of inhabited land- less severely—than burglary differently—and punished whether the constituted for of determining burglary based purposes premises hand, 460, on amendment to section the other serious The 1989 felony. a intent that reflected obviously Legislature’s residence. of a land-based vessel be treated equivalently in this case that there was authority Court of recognized Appeal house” as used to the term “inhabited dwelling an expansive reading giving would 1192.7(c)(18), and and for term concluding in both sections 460 Nonetheless, to reach the court felt constrained include an inhabited vessel. a rule of construc statutory conclusion in order to avoid violating a different in a statutory language tion. That rule directs courts to avoid interpreting (See Brown v. the statute manner that would render some part surplusage. 724, 477, 272]; P.2d Cal.3d 484 691 (1984) Court 37 Superior Cal.Rptr. [208 47, (1982) 32 Cal.3d 54 Francisco v. Farrell City County [184 and San that, 713, in the 935].) P.2d Court of reasoned 648 Appeal Cal.Rptr. reference to “inhab it were to section and its event interpret vessel, reference in of a ited house” to include that we Defendant also urges 460 to vessels would be redundant. that ambiguities penal rule of construction consider “established v. (People to the accused.” favorably statutes are to be construed most 656, 1002, 154].) P.2d (1987) 1011 741 Cal.Rptr. Woodhead 43 Cal.3d [239 “ ‘ statute, possible, signif have said that in We interpreting “[i]f word, and of an act in sentence part icance should be given every phrase, ’ ” (DuBois Comp.Appeals v. Workers’ pursuance legislative purpose.” 388, Bd., added.) directing Rules such as those 5 Cal.4th at italics p. supra, mere are surplusage to avoid enactments legislative courts interpreting (See v. Raisin Dickey will not be used to defeat intent. legislative and guides 505, A.L.R. (1944) 157 Proration Zone No. 1 24 Cal.2d [151 (1984) 324]; 162 Cal.App.3d see also Bledstein v. Court Superior (1971) 15 428]; Inc. v. Hacker Emporium, 160-161 Cal.Rptr. [208 stressed, 132].) have already As we Cal.App.3d Cal.Rptr. [93 out the carry is to ascertain of statutory interpretation fundamental goal 898; Pieters, 52 Cal.3d at v. supra, intent of the Legislature. (People 10 Cal.3d v. Workmen’s Bd. Moyer Comp. Appeals remains 1224].) To the extent that uncertainty 514 P.2d Cal.Rptr. to the conse should be given “consideration statutory language, interpreting v. Inc. (Dyna-Med, interpretation” that will flow from a quences particular Com. Housing 43 Cal.3d & Employment Fair the “wider 1323]), and both legislative history 743 P.2d (Ibid.) Fur- the enactment be considered. historical circumstances” if such an ther, in the defendant’s favor are not ambiguities interpreted result, with or a result inconsistent an absurd would provide interpretation Pieters, Cal.3d at intent. (People legislative apparent shown, defendant is quite As we have the interpretation proposed amending intent with the evident Legislature’s inconsistent to enhance desire of the electorate 1192.7(c)(18)—an intent to effectuate the residential on who have committed prior the sentences recidivists imposed section amendment to contained in subsequent burglary. Nothing 1192.7(c)(18) enhance- to of the section was intended limit the applicability intended, rather, 460 was to ensure ment. The amendment to section We would as other habitations. vessels would receive the same protection section and of the that amended contravene intent purpose 1989, if, statutory rendering in out a need to avoid perceived of of addition we were construe language “surplusage,” Legislature’s treatment for (mandating degree to section 460 language equivalent residence) as of an vessel and of land-based inhabited to the enhancement effect with having exactly opposite respect provi- 1192.7(c)(18). construction statutory sions section Sound principles an conclusion. dictate our such unreasonable against arriving of first Defendant us to related amendments to the definition asks examine for certain residential robbery, prior and sentence enhancement robberies. He that the Legislature these amendments demonstrate argues con- omitted amendments to the parallel purposefully provision in 1192.7(c)(18). tained section 212.5, that, 1990, (a),

Defendant out before section subdivision points which is “robbery defined first other degree robbery (among things) coach, in the or as defined an inhabited house trailer perpetrated dwelling 1986, Code, (Stats. Vehicle or the other any building.” inhabited portion 1428, 213.5, 1982, 2, 5123; Stats. ch. see also former section added p. § 1293, 1, 1990, 2, 4783.) January ch. The section was amended effective p. § vessel, and 21 of the Harbors include of “a as defined Section robbery Code, (Stats. for habitation.” which is inhabited and Navigation designed out, 1989, 361, 1, 1486.) amendment, was defendant ch. points § 460, identical enacted the same nearly year. to the amendment section 667.5, addition, asks us to subdivision defendant consider term for (c)(9), which for a enhancement provides prior sentence prison felonies, certain violent including robbery an inhabited house dwelling committed with deadly use of a personal weapon. Defendant points out that 1991, to its amendment in statute prior this encompassed “robbery perpe- coach, trated in an inhabited or house trailer as defined in the Code, Vehicle or in the (Stats. inhabited other portion building.” 611, 1, 1953.) ch. The statute was amended effective January § “vessel, to include of a robbery as defined in Section 21 of the Harbors Code, which is Navigation inhabited and designed for habitation.” (Stats. ch. §

Defendant would have us infer from the Legislature’s failure to insert parallel 1192.7(c)(18) amendments into section that it intended that burglary of a vessel not be considered a serious for the felony purpose five-year enhancement under section 667. provided Defendant out the points Legisla- ture did have occasion to amend in the after the years amendment of section but did not amend the statute to conform to the amendment 667.5, of section as it did with to sections subdivi- respect 212.5, (c)(9), sion (a). subdivision

The circumstance that the did not Legislature enact a amend- clarifying 1192.7, ment to section (c)(18), subdivision as it did with to sections respect 667.5, 212.5 and house,” does not that the term signify “inhabited dwelling as used in 1192.7(c)(18), section does not include inhabited vessels. There is no indication that the considered and such an amend- rejected ment to section 1192.7(c)(18), and we have reluctance frequently expressed to draw conclusions concerning intent from silence or legislative legislative (See, inaction. (1993) v. e.g., People King Cal.4th Cal.Rptr.2d [19 27]; 1095,1108 851 P.2d Ornelas v. 4 Cal.4th Randolph 560]; XIV, 847 P.2d Cal.Rptr.2d Harris v. Capital Growth Investors 1156; supra, Cal.3d atp. Ingersoll v. Palmer 43 Cal.3d 1299].) 743 P.2d In of our light discussion of foregoing legislative history these various we are not provisions, persuaded by defendant’s in this argument regard. it is clear that when the summary, electorate enacted originally 1192.7,

sections 667 and imposing sentence enhancement for five-year felonies, serious it intended to enhance recidivist sentences to be imposed involved, when a residential prior is burglary concluded that residen having tial as other potentially dangerous listed serious felonies. Jackson, 831-832; v. (People supra, 37 Cal.3d at see also pp. Guerrero, 347-348.) Cal.3d at pp. Legislature, amending section 1192.7(c)(18) in 1986 to conform the statute to the definition of first degree intended burglary, simply to eliminate caused any uncertainty by of a definition specific conduct not matching reference to electorate’s amendment, to that ensure Legislature attempted this enacting crime. By as a serious felony- electorate—to treat residential of the the intent section 460 was amendment to in the 1989 be carried out. Nothing —would section of the enhancement provided intended to limit applicability to that ensure amendment was intended 1192.7(c)(18). simply The 1989 habitations; would be it as other receive the same protection vessels would unintended effect had the that this enactment anomalous conclude wholly of an residential burglary—“burglary a class of creating the enhancement otherwise provided would escape inhabited vessel”—that 1192.7(c)(18). section we that in reaching To misunderstanding, emphasize avoid any possible must, should, decision, add this or our we that court reject any argument order to correct a to inhabited vessels in a reference nor 1192.7(c)(18), have added words to section We not legislative oversight. Rather, to ascertain the we have have we rewritten attempted provision. intent in enacting most reasonable Legislature’s interpretation 1192.7(c)(18), statutory language, light as amended and out-of- language, California authorities broadly interpreting prior to in- similar secondary construing language state decisions authority of an vessel. clude inhabited

IV and the matter remanded the Court of is reversed judgment Appeal this to that court for further not inconsistent with opinion. proceedings Kennard, J., Brown, J., J., Baxter, J., and concurred. Werdegar, The that it has ANDERSON, dissent. concludes majority I respectfully J.* 1192.7[, (c)(18), nor “not added words to section subdivision] [Penal Code] ante, . Such bold (Maj. . . rewritten this provision.” opn., page.) is the has done. In disclaimer what notwithstanding, precisely majority 1192.7, (section (c)(18) to Penal Code1 section subdivision adding language intent, 1192.7(c)(18)) of the majority under the guise effecting legislative legislative reconfiguration directive such specific prohibiting ignores of several relevant statutory interpretation. violates principles Is the Employs A. The Intent the in Words It Legislature Manifested goal and I on the same road: The significant most majority begin is out the intent the ascertaining and statutory interpretation carrying Four, Justice, District, *Presiding assigned the Appeal, Appellate First Division Court VI, Acting pursuant Chief Justice to article 6 of the California Constitution. indicated, statutory 1Unless otherwise all further references are to the Penal Code. Comp. v. Workmen’s Bd. Legislature. (Moyer Appeals 10 Cal.3d However, 1224].) 514 P.2d Cal.Rptr. and I head majority in different directions when it comes to choosing the manner in which such view, intent should be ascertained. In intent should be my legislative dis cerned from the words used—and the words not actually used—by statutes. Legislature seems to be enacting majority’s to seek approach out some behind the words used—and meaning lurking not used—by Legislature. out such “hidden seeking meaning,” follows a majority trend of on extrinsic aids which disturbing relying do not illuminate the intent of the collective legislative body. IV, (b)

Article subdivision of the California Constitution pro- vides: “The make no law Legislature may statute and enact except by may Thus, Constitution, no statute bill . . . .” except by under the California will legislative and intent be may only expressed statutes—statutes through are, turn, which composed language—words which reflect intent. If the is Legislature from its intent constitutionally precluded expressing except enacts, the words through in the statutes it it employed seems reasonable that the courts should examine those words to determine intent. That legislative limitation is even more significant because the is a collective Legislature body made of 120 each of up persons, whose minds harbor an “inten- tion” which is different from that of other legislator. ‘intention,’ overtones of the

“Despite word anthropomorphic Legislature not a What person. goes on the minds of individual Rather, when legislators a statute cannot fix enacting its meaning. Legislature is a collective and its entity ‘intentions’ are known primarily its . . . legislative acts. The statutes themselves the collective embody ‘intention’ of the Legislature. a law is all that is adopted, really ‘[W]henever agreed (In-Home is the words.’ upon Supportive Services [Citation.]” Workers’ Bd. Comp.Appeals Cal.App.3d 697], omitted, fn. italics.) original

B. The Words Employed by the Make It Clear That Burglary a Vessel Is Not Covered by Section 1192.7(c)(18)

Section establishes of an inhabited “burglary house, Code, or trailer coach as defined the Vehicle or inhabited by portion “ ” of other any as a building” ‘serious The definition of first felony.’ degree burglary section 460 is broader—it includes not the only burglaries enumerated in 1197.2(c)(18) section but also of an inhabited vessel burglary or intent, home. floating Put the as manifested simply, Legislature’s plain words of the two language—the statutes—is that certain which are burglaries of the first do not degree as serious felonies. qualify view, conclusion— the reaches its majority questionable the reason In my inhab for of an burglary has suffered conviction “an individual who that ” ante, of felony’ opn., a conviction a ‘serious (maj. vessel has sustained ited backwards. Instead 779)—is the conducts its analysis because majority at p. statutes, its at the begins first the of the looking language majority of plain the of the 1986 amendment by examining “history” analysis purportedly at 1192.7(c)(18). the two statutes looking Had the majority begun by section it If unambiguous. majority would have found each the clear separately, at would no had looked the have found together, majority statutes the them, the have collective conflict nor would majority or between ambiguity any found or of the statutes uncertainty ambiguity application the specific the in the case at have been no need for bench. there would Accordingly, Deukmejian to majority (Lungren search for indicia of intent. legislative sum, 299].) had Cal.3d statutes, the words of two the would majority looked first at the the majority vessel, although have reached the conclusion that the first degree, felony.” not a “serious Is Flawed Majority’s Analysis

C. The first, a result of the “history” As down and analyzing starting wrong path the the reaches several conclusions about 1986 amendment majority First, that 1192.7(c)(18). section the concludes the Legislature majority 1192.7(c)(18) “amended for it clear that section the purpose making 1192.7(c)(18) include section would first degree burglary encompassed ante, the then of section 460.” at by existing language (Maj. opn., The then that to the majority concludes intent narrow appears applica “[n]o {Ibid.) tion of a residence’ serious enhancement.” ‘burglary felony “those that were to be majority finally concludes that intended burglaries treated as serious virtue of section by felonies of the 1986 amendment 1192.7(c)(18) felonies should continue constitute serious purpose (Ibid.) are of no second and third conclusions provision.” The first is to my or mine. crucial consequence majority’s analysis in the majority’s analysis: error analysis ultimately highlights amendment made it clear that would include any covered of section 460.” existing language first “then degree burglary ante, in the added.) italics Put another way, nothing (Maj. opn., in the amendment—or considered the majori language “history” of, or intended that expansions ty—suggests future to, the automatically additions acts would constituting degree 1192.7(c)(18). Legisla a “serious under Had the constitute felony” intended, in the first ture so it could have easily designated “burglary or “first in section 460” as a “serious degree” defined felony.” in

When section 460 and the legis the amended Legislature lators believed that were the acts which constituted first they expanding Counsel’s informed all the the burglary. Legislative Digest2 at the time voted on the amendment of section 460 that legislators they law, house, coach, trailer existing burglary “[u]nder or inhabited of a of the 1st which is a building burglary degree, portion vessel, All other are the 2nd felony. burglaries, including burglaries of of either or a This bill degree, felony and are as misdemeanor. punishable [<J[] would make an inhabited vessel which is habitation burglary designed of for thus, the an crime and degree, expanding scope existing the 1st of of a state-mandated local Counsel’s Assem. creating program.” (Legis. Dig., Sess.) Bill No. 4 Stats. italics (Reg. Summary Dig., p. added.) In the Counsel’s informed the Legislative legislators: Digest various, “(5) law defines the of with larce Existing entry specified places nous or other felonious intent as and defines the of various entry burglary, coach, inhabited a trailer in the This bill or 1st degree. places, ['JO would add a home to the list the which with floating places entry larcenous or intent constitutes and would such burglary, specify felonious in the 1st a state-man entry constitutes degree, thereby imposing dated local the a crime.” Coun by expanding program (Legis. definition of (1991-1992 Sess.), added.) sel’s Assem. Bill No. 628 italics Dig., Reg. its and the avoids obvious conflict between conclusion majority in and their actions section 460 1989 and 1991 legislators’ amending actions, of the effect their as evidenced Legislative understanding (and Counsel’s Digest, by finding legislators by implication ” Counsel) the true state of the law—that bur- Legislative “misunder[stood] of a vessel which is “inhabited and for habitation” and/or a glary designed home” was of the first at least as far back as 1986. “floating already degree, concludes that the was for three reasons: majority wrong California cases have the term house” for prior broadly interpreted “dwelling 460; (2) lan- purposes legislative objective statutory residential increased guage recognizes danger gravity burglary; have to include bur- out-of-state cases construed similar language of an inhabited vessel. none of the factors relied glary upon by Regrettably, its conclusion. majority supports reliance part majority’s 2While I take issue in E. of this dissent with the indiscriminate upon legislative Digest does analyses, Legislative committee staff I believe that the Counsel’s qualify judicial discussing legislative appropriately notice and be considered 6, post. intent. further See discussion footnote

789 law, and rationality sections 459 and terminology the 1. California not inhabited and homes are floating vessels the conclusion that support term “inhabited house.” dwelling in the encompassed California authority that to 1986 no prior The concedes tacitly majority vessel constitutes of an inhabited the proposition supported ” “ ante, 775.) at (Maj. p. dwelling opn., house.’ ‘burglary definition to issue). The only logical to either conclusion to be drawn reported relating Holt’s conviction of and second is that degree burglary from the facts of Holt as an If thing an is not the same “inhabited house.” dwelling inhabited vessel were, would have been for Holt’s conviction they degree burglary. Moreland, and dismisses 81 addresses majority 11, but fails to consider its real to the case at bench. significance Cal.App.3d Moreland, the Court of considered whether Moreland’s discharge Appeal (then) of a firearm at a motor home came within the of section provisions “at, 246 which of ‘an inhabited prohibited firing weapons ” (81 court house or at The Moreland occupied building.’ Cal.App.3d definitions of “house” and considered numerous carefully thoroughly home did not come within any concluded that a motor “building” either In so the court observed: reasonable of term. meaning concluding, “Would the citizen that motor is a house or a believe ordinary [a home] cruiser or sail more than he would believe a 24-foot cabin building, any boat, car, or a railroad or an is a house or even if equipped airplane building, (Id. added.) court with bunks and a kitchen?” italics The Moreland matter, legis is correct. No citizen—and for that no ordinary sophisticated fell the definition of lator—would think that a vessel or a boat within “house.”

One other factor which militates in favor of the view that first degree (inhabited or has not included invasions of vessels historically otherwise) includes vessels in is found of section 459 which language list burglary. Certainly, its of which be the of lengthy subjects object an had the intended before to the invasion of classify (in 460), it would inhabited vessel as of the first degree have done so. law, I More-

The conclusion from the relevant cáse Holt and only draw land, and the inclusion of “vessel” within section and its exclusion from vessels, 1989) or section 460 to is that whether inhabited (prior burglaries not, were of the second until degree 1989. 2. amendment underlying Recognizing policy this, other, does not its amendment or court. by authorize

The second factor that burglaries decision influencing majority’s on inhabited vessels have been of the first since at least is based degree 1192.7(c)(18)—that amendment of section policy underlying “residential” are more than nonresidential burglaries dangerous burglaries. assertion,3 that at least correct in that partially Assuming majority whether or of inhabited not understanding burglaries is irrelevant to policy Moreover, that occu- concluding 1986. were of the first vessels from intrusion entitled to the same of inhabited vessels are protection pants other inhabited residences is value as the and violence occupants is designated which under our system separation powers judgment the law and not those trusted be made those to enact empowered it. interpret the by majority

3. The decisions cited out-of-state its conclusion. do not support the of its conclusion that The last factors cited by majority support in California of inhabited vessels have been of the first burglaries (Minn. least v. Vredenberg since at 1986 are two decisions: State foreign 1978) 1986) (Alaska 264 N.W.2d 406 and v. State Shoemaker Ct.App. As a it is worth cites no starting 391. point, noting majority whatsoever for the it to consider the authority proposition appropriate decisions of which have their state’s foreign jurisdictions interpreted penal Moreover, laws to California’s laws. the two cases interpret penal support conclusion from the one for which the has cited them. opposite majority In State v. Vredenberg, the Minnesota Court concluded that Supreme cabins of houseboats constituted under Minnesota law. The court “buildings” its began was then defined analysis by noting “building” by “stream- “ Minnesota law to include ‘a or other structure for suitable line[d]” (State shelter for human . . affording . .’” v. beings Vredenberg, supra, 406.) N.W.2d at The court then noted p. that the definition of “building” before the law was streamlined included “vessels” and that the specifically intent of the drafters of the was not to omit certain structures from change (Ibid.) of the statute. the Minnesota protection Simply put, Supreme that, Court held where Minnesota’s Criminal Code once defined specifically to include vessels and where no intent had been evidenced to buildings definition, (Id., narrow that vessels remained under Minnesota law. buildings Here, 407.) we are a statute in which neither interpreting “dwelling Moreover, nor “building” house” has ever been defined by Legislature. C.I., ante, to in as alluded if the had part viewed “vessel” as with it would not have included both synonymous “building,” “building” “vessel” within the of structures identified in section types 459. that, agree 1192.7(c)(18) amending 3While I with the Legisla fact as then defined

ture intended to make burglaries degree, it clear that all which were felonies, Legislature’s objective would be deemed if “serious” had felonies, actually been to treat burglaries argued by majority, all “residential” as serious as simply it would have left section alone. State, In Shoemaker v. the court of also dealt with criminal appeals codes which clear definitions of the provided terms therein. employed Under law, Alaska a first was defined that of degree burglary which “building” “ was used as a A included ‘in “dwelling.” “building” specifically addition to its usual . . . . . . meaning any propelled adapted overnight [vessel] ” accommodation of or for on business . persons (Shoemaker . . .’ carrying State, P.2d at issue raised the defendant in only Shoemaker which is relevant to the case at bench was whether or arguably not a boat which fishing was two crew members but which designed sleep was left while the owner tried to unoccupied sell it constituted a “building” under Alaska law. How can an a court of logically another interpretation by laws, state of the of its which define meaning to include carefully buildings vessels, statutes, serve as a basis for California which interpreting explicitly between “vessels” and “buildings?” differentiate D. The Majority’s Approach Ignores Relevant Principles Statutory Intent, Interpretation, (2) Relevant Indicia Legislative Legislature’s Prohibition Words to Against Adding Statutes 459, the

By ignoring language 1192.7(c)(18) sections 460 and aids, to infer some attempting unexpressed intent from extrinsic legislative such as committee the analyses, the rule that majority ignores analysis with the begins of the statutes plain language under consideration. (Lungren v. Deukmejian, 735.) 45 Cal.3d at supra, By assuming 1989 and 1991 additions of the terms “vessel . . . ”

which is inhabited and for designed habitation” and home . . . to “floating effect, section 460 are of no the violates the majority rule that statutory constructions which render some words mere should be surplusage avoided. (People (1987) v. Woodhead 43 Cal.3d 1010 741 Cal.Rptr. [239 154].) P.2d

By fact that “vessel” ignoring is included in the pre-1989 language that, section 459—but not section 460—the the rule majority ignores where the drafters of a statute have a term in employed one and omitted it in place another, “it should not be inferred where it has been excluded.” (People Woodhead, 43 Cal.3d at also majority short shrift to gives (a) the fact that the Legislature 212.5,

amended the (§ (a)) statute subd. robbery 1990 to include inhabited 667.5, (b) vessels and (c)(9) (enhancement amended section subdivision for term) to prior prison include such robberies. The Legislature’s specific choice to address enhancements for crimes committed in or on vessels and intent to context not another reflects legislative in one homes floating robberies) and not (enhancements for all act in the first context it Again, not (enhancements specific—but all—burglaries.) in the second intent. to such evidence ignore legislative for the majority is inappropriate to failure Legislature’s little to significance also accords majority the 1989 amendment following the years amend section for other purposes. when it twice amended section 1192.7 Moreover, amendment of section ignores Legislature’s majority 1170.95, definition of (h), homes within the subdivision to bring floating for certain residential to determinate laws sentencing burglaries subject to such failure to address enhancements relating crimes and its concomitant law, to act to when the subject crimes. Such failures change repeated ” “ should not be deemed a ‘draftsman’s oversight’ before Legislature, but, instead, as is in areas which are not reflect an intent to leave the law amended. v. McClanahan 3 Cal.4th (People Cal.Rptr.2d 241].) 838 P.2d sum, of numerous has shown that it is aware Legislature parallel and residential robberies and that residential provisions relating burglaries it knows how to make in some of those and not in others. changes provisions Homes, (T&O Cal.3d Mobile Inc. v. United Bank California infer, 430].) It is as the inappropriate does, that the intended that each and every majority implicitly which is added to those enumerated in section 460 should automat- 1192.7(c)(18). be If the deemed a “serious under section ically felony” had such an intention in or at time since the last (c)(18), of subdivision it have been amendment would very easy express it of the first or “first as defined saying by “burglary degree” degree burglary 460,” in section instead of listing only specific burglaries.

The last two rules of construction violated the are by majority arguably First, statutes at the most even if one were to assume that the significant. are or in the context issue here that their is “uncertain” ambiguous meaning we are take in which them—a with which I considering obviously point be con- California law must issue—long-settled any ambiguity requires Woodhead, strued most to the accused. 43 Cal.3d favorably (People 1011.) at stretches to create additional criminal liability majority violation this basic principle. to the has violated the

Finally, the despite protestations contrary, majority cardinal rule of its statutes: “In Legislature’s own regarding interpretation the construction of a statute . . . the office of the to ascertain judge simply therein, or in insert declare what is in terms substance contained not to

and omitted, (Code to omit inserted . Civ. has been or what has been . . what Proc., added.) italics § 1192.7(c)(18), how one will the

No matter times reads section never many “vessel . . . which is or words inhabited and habitation” designed home” “floating appear.

E. The Errs Majority in Considering Analyses in Staff

Analyzing Intent Legislative the Although does not them in its majority rely heavily upon reaching conclusions about the 1192.7(c)(18), interpretation sections I believe that the errs in notice of majority certain extrinsic taking judicial (a) aids—“analyses” of the bill Committee on Safety Public Assembly (b) the Senate Committee on the consideration Judiciary. majority’s those materials error made its compounds majority beginning analysis by at the rather looking “history” statutes than first examining their language. and, law, Legislative

1. analyses under committee are existing reports staff to be where considered a statute is only “uncertain.” meaning of consider two noted staff relies choosing analyses,4 majority Hutnick v. on United States & Co. Fidelity Guaranty 47 Cal.3d footnote 763 P.2d That choice is erroneous 1326]. Hutnick. under What Hutnick is that committee says reports be consid- Here, (Id. “when the of a ered statute is uncertain.” meaning fn. are analyses—not (See we with dealing committee discussion in reports. staff E.2., however, More post.) because the pt. the 1986 importantly, meaning (even amendment is not “uncertain” under view), it is for the majority’s inappropriate to consider committee majority or staff to determine reports analyses intent. legislative

2. Legislative and committee analyses are reports staff

unreliable indicia intent. legislative decades, For aids, California courts have considered extrinsic such (cf. 260, 267, committee re reports Rottanak K. fn. Cal.App.4th majority 4The judicial takes notice of analyses relating three other staff to the 1989 ante, 9.) amendment of (Maj. opn., p. 460. at I do analyses fn. not discuss those majority because the quote rely does not from them and not to any seems on them in fashion. However, them, I believe majority taking judicial the errs in notice of as well. (cf. States 543].), Fidelity Hutnick v. United staff analyses Cal.Rptr.2d Co., 465), (cf. reading analyses Cal.3d third p. & Guaranty supra, 1308-1309 [279 v. Tabb Cal.App.3d 480]), the Most of process lawmaking. and other documents in generated whether those cases those aids without considering have examined extrinsic or not the the Legislature. are useful in intent of they truly determining Hutnick is this court has the case of which I am aware in which only indicated “The committee useful: rationale for why are reports5 theoretically committee statutes is similar to the considering when reports interpreting rationale for when initiative mea voter materials an considering construing sure. In both it is voted cases reasonable to infer that those who on actually the read in proposed measure and the materials expla considered presented it, nation of and that the materials some indication of how provide therefore the measure was understood to at the time those who voted enact it.” by (Hutnick Co., States United & 47 Cal.3d at Fidelity Guaranty supra, p. 7.) fn. What is valid for voter mate Unfortunately, wrong. Hutnick is rials is invalid for committee ordinarily reports. instances,

In most who see California vote on a bill its text legislators only and the Counsel’s it.6 Legislative Committee committee Digest reports, staff analyses, (to list but a few hearing sponsors’ and transcripts, analyses items the generated in are included in the legislative not process) ordinarily Indeed, materials presented legislators their committee prior voting. and staff not at least all reports analyses be seen members—or may by view, the members—of the committee it which them. In is generated my unless, to take inappropriate judicial notice such materials at a any minimum, fact, were, their can in demonstrate that consid- proponent they to, ered or at least available by, the entire Legislature.7 Hutnick, While I that in Justice least some acknowledge Kaufman at gave reason committee merit why consideration courts reports by determining intent, legislative the same not be said for of the six California cases and the two United States Court cases cited him in by Supreme 5The Hutnick court discussed however, propriety considering reports; committee Hutnick court actually what analysis an considered was a committee staff member. (Hutnick Co., Fidelity Guaranty v. United & 465.) States Cal.3d at Legislative Digest 6The assessing legislative Counsel’s frequently is a valuable tool Legislative (Gov. intent. The Office of the Counsel was created 1913. Code, 10200; ch. Legislative responsible Stats. § Counsel § Code, preparing legislation (Gov. (a 10231), digest its often synopsis which describes § current law and purpose legislation) and effect of proposed precedes text of each upon Legislature. bill voted by the Legislative Digest, satisfies all Counsel’s therefore criteria part discussed in and parts this E.2. E.3. of this dissent. 7For example, if report Legislative Digest a committee were to the Counsel’s or appended digest. otherwise the referenced in cases, Hutnick,

footnote 7. which have relied on Many including committee or staff cite two cases for the conclusion analyses that such materials reports serve as indicia of intent—Maben v. may legislative Court Superior and Southern Pac. Co. v. Ind. Cal.App.2d 439] (Southern Pac.). Acc. Com. 19 Cal.2d 278-279 880] The two cases merit Maben does contain scrutiny. the following language: “It has been the rule that long ‘Statements in committee legislative reports the in concerning statutory objects which are accord with a purposes, statute, reasonable will interpretation be followed the courts. And it will be presumed the Legislature adopted proposed legislation with the Cal.Jur.2d, intent and (45 in committee meaning expressed reports.’ Statutes, 670.)” Court, (Maben Superior Cal.App.2d § There are two to be made about significant the points proposition First, dictum; of law advanced in Maben. it is the court addressed actually the propriety Counsel’s considering Legislative com Digest—not Second, mittee report. cited for that although authority proposition— California Jurisprudence Second—does contain the language quoted by court, Maben California cite editors Southern Pac. as the Jurisprudence’s case it. only supporting First,

Southern Pac. is interesting several reasons. there is no author for this court opinion; of the Court of adopted opinion verbatim. Appeal Second, the Southern Pac. court was statute and consid analyzing federal ered a of a United States Senate committee to the bill in report pertaining Third, the court relied on two in question. authorities that a stating report “ ” in which is accord with a ‘reasonable of the statute could interpretation’ “ ” be considered interpreting—one federal case and CJ. 1021.’ ‘59 Pac., (Southern Juris, turn, 278-279.) supra, 19 Cal.2d at pp. cites Corpus numerous federal cases—but no California case—in of the noted support My conclusion is that the proposition.8 editors California Jurisprudence, court, and not this court or lesser created the “rule” that California courts consider committee legislative as indicia of reports California intent.9 legislative on proposition legislative 8Reliance federal authorities for the that California committee reports are valuable legislative indicia of inappropriate. system intent The federal considering passing bills and vastly laws is different from California’s. What is valid for the (and system may not) (For federal my not be example, view is valid for in the California. system, frequently federal a bill is Representatives sent to the floor of the House or Senate with a report recommending committee passage explaining purpose its its and effect. statute, report may Such a well be a interpreting every valuable tool for as it is available Senate.)

member of the House and no California case in which 9I am aware of analyses propriety considering staff has given ever been careful consideration. view, the materials in should be tested the criteria In my question Walter Kendall Hurst in The Use Extrinsic Aids in Determin- suggested by Intent in The Need Criteria ing Legislative Standardized California: (1980) 12 Pacific L.J. 189 et Hurst that courts should examine seq. proposes extrinsic aids from four their in value perspectives assessing proffered intent: (reliability), determining legislative credibility contemporaneity aid was (when (closeness the of the of the aid to prepared), proximity origin (historical and context circumstances legislative process), surrounding of the legislation and the for which the aid passage was purposes promul- (Id. 192-195.) gated). pp. reliability committee is as the and level analyses suspect, expertise moreover, unknown; instances, knowledge author are in most

names and of the authors are not qualifications available to those—the addition, courts—which must assess the of their credibility analyses. cases, most to, there is no evidence that the have been or analyses presented to, were even available the members of the who voted on the instances, measure. Staff also fail the analyses “context" test in as many they nature; indeed, are frequently cursory are sometimes “analyses” only sum, filled-in blanks on standardized forms. In staff are analyses generally not valuable tools for I see assessing intent. no reason to deviate legislative from that rule in general the case at bench.

3. The majority errs in taking judicial notice analyses. of staff has taken majority notice of the judicial two staff analyses without adherence First, to the established requisites the Evidence Code. neither nor the defendant asked this court to take notice of these judicial specific analyses. Presumably, notice majority taking of them judicial Yet, on its own motion. it has not followed the dictates of Evidence Code sections (c), subdivision (a). subdivision Simply put, has not majority either side the given “to to the court opportunity present information relevant to propriety notice of the taking judicial matter and Code, tenor of the (Evid. matter to be noticed.” 455§ (a).) subd. however,

More I significantly, cannot see how court any can take judicial notice of staff under the analyses Evidence Code. Evidence Code section courts from precludes notice of taking judicial matter unless author- ized or law. I am hard required by to see how committee pressed or reports staff analyses matters of which qualify notice be taken. judicial They are not certainly matters subject notice mandatory judicial under Evidence Code section 451. Nor do to be they matters for appear permissive judicial

notice under Evidence Code section 452. Are they then acts” of “[o]fficial (c)? under section subdivision I cannot Legislature see how a staff (or, can as an “act” of the analysis to use the qualify language (c), subdivision .”); . . . . . and I “legislative departments am certain that such an analysis should not be deemed “official.”

F. Conclusion It matters not whether one looks at the of section only language 1192.7(c)(18) or also at the in section “history” changes 1192.7 and/or sections and 460. Section does not and never has con- tained the words “inhabited vessel” or home.” Because the “floating prose- cution in the case at bench failed to establish that defendant’s prior conviction inhabited degree burglary was other than of an vessel or a home, insufficient evidence floating of that supports finding conviction for enhancement I would affirm the purposes. Court of Appeal.

Mosk, J., concurred. 25,1996. Chin, for a Appellant’s petition was denied rehearing September J., Mosk, J., did not therein. was of the participate opinion petition should be granted. notes have a broad given then that several cases majority definition, and, “inhabited” concludes that based on that broad the term whether (“ is used for ‘currently dwelling purposes vessel which inhabited ”) is within term “inhabited house.” dwelling or not’ included the occupied ante, 777.) at (Maj. opn., decision between 1986 What does not note is that no reported the majority the the amendment of section 460 1989 con- Legislature’s and date of of an cluded of an inhabited vessel constitutes “burglary that burglary inhabited none the also fails note that house.” dwelling majority considered, cases it even of vessels. Most burglaries cites referentially, however, to the fails to majority give weight importantly, appropriate two have burglaries California decisions which considered only reported Holt and v. v. boats—People Cal.App.2d 58] Moreland which Cal.App.3d 118]—both conclude that such are of the albeit burglaries degree, by implication second in the former and dictum in the latter. Holt, In or People v. Court considered whether not suffi- Appeal evidence, cient from the statement of an corroborated apart accomplice, conviction of second a cabin cruiser. The appellant’s Court of found statement to the such corroboration Appeal appellant’s he admitted docks with the which around police rowing Newport Holt, while the several (People entered boats. accomplice accomplice 43-44.) In of an “inhabited burglaries Cal.App.2d pp. only house or in the time” or night committed building burglaries armed or assaulted committed individuals individuals who by “any Holt, (Stats. were of the first ch. degree. person” § (a) “inhabited” was no factual about under the being there the boat dispute (Holt took broad term and his given accomplice scope majority boat; from the and the goods early evening canned owner left boat in and did not return until that he aboard it and 10:30 cooked p.m., indicating it); (b) been committed at likely planned sleep aboard the burglaiy having (the testified that started “toward night accomplice night” they rowing dark,” continued “after and the in the rowing owner was only gone evening); (c) (no not an or a involving testimony assault weapon

Case Details

Case Name: People v. Cruz

Court Name: California Supreme Court

Date Published: Aug 5, 1996

Citation: 919 P.2d 731

Docket Number: S046075

Court Abbreviation: Cal.