People v. DeayPeople v. Deay
LONG, J.*
Following a court trial, defendant was found guilty of two counts of residential burglary (
On appeal, defendant contends (1) the evidence is insufficient to support one of the burglary convictions, (2) both burglary convictions must be
FACTS*
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DISCUSSION
I*
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II
Defendant was charged in counts I and II of the information with “RESIDENTIAL BURGLARY, in violation of Section 459 of the Penal Code,” in that he unlawfully “enter[ed] the inhabited dwelling and residence” of each victim. As to each count, the court returned a finding of guilty of “residential burglary.” The court did not expressly recite, however, that the findings were for burglary of the “first degree.” Defendant‘s sentence to the four-year middle term for each count is the middle term sentence prescribed for first degree burglary. (See
(1b) At the time the offenses were committed,
We see no practical difference between burglary of an inhabited dwelling house and residential burglary. With the elimination on January 1, 1983, of the requirement that a first degree burglary be committed in the nighttime, all burglaries of residences are first degree pursuant to
Not only has residential burglary become synonymous with first degree burglary, but also a prior conviction for first degree burglary is, as a matter of law, a burglary of a residence for purposes of enhancement. (People v. O‘Bryan (1985) 37 Cal.3d 841, 845 [210 Cal. Rptr. 450, 694 P.2d 135]; see also People v. Alfaro (1986) 42 Cal.3d 627, 632, fn.3 [230 Cal. Rptr. 129, 724 P.2d 1154].) Notwithstanding that sentencing enhancements for prior convictions refer to criminal conduct as opposed to specific criminal offenses (People v. Jackson (1985) 37 Cal.3d 826, 832 [210 Cal. Rptr. 623, 694 P.2d 736];
(3) Reference to a specific count contained in the information is a proper method of fixing the degree of the crime charged so long as the form of the verdict clearly indicates the court‘s intention to find the defendant guilty of the offense with which he is charged. (People v. Bratis (1977) 73 Cal. App.3d 751, 764-765 [141 Cal. Rptr. 45]; People v. Savala (1969) 2 Cal. App.3d 415, 418 [82 Cal. Rptr. 647], disapproved on other grounds in People v. Beagle (1972) 6 Cal.3d 441, 452 [99 Cal. Rptr. 313, 492 P.2d 1]; People v. Reddick (1959) 176 Cal. App.2d 806, 821 [1 Cal. Rptr. 767].) Thus in People v. Anaya (1986) 179 Cal. App.3d 828, 832 [225 Cal. Rptr. 51], a jury verdict finding a burglary was committed upon an inhabited dwelling and a residence was deemed a finding of first degree burglary despite the fact that the substantive definition of the crime, rather than the label of “first degree burglary,” was mentioned in the verdict form.
(1c) In this instance, the trial judge‘s reference to counts as charged in the information leaves no doubt that the first degree was fixed for the committed offenses. As in Anaya, the trial judge should not be faulted for referring to the substantive definition of first degree burglary. Nor was it error for the court to refer to the information as the foundation for the substantive definition of first degree burglary. Unlike People v. McDonald, supra, 37 Cal.3d 351, 379 and People v. Williams (1984) 157 Cal. App.3d 145, 154 [203 Cal. Rptr. 562], reference to the charging document in the present case unequivocably sets forth the substantive elements of the greater degree crime.
In addition, the present case is further distinguishable from those cases where sections 1157 and 1192 required reduction of a charge to the lesser degree. Here, the trial court‘s intent to convict for first degree is demonstrated in a single finding and not implied by any subsequent findings, such as a finding on an enhancement (People v. Thomas, supra, 84 Cal. App.3d 281, 285) or by a finding of special circumstances. (People v. Beaman, supra, 8 Cal.3d 625, 629, fn. 2; see also People v. McDonald, supra, 37 Cal.3d 351, 382.)
III
The information alleged that defendant had been previously convicted of two serious felonies within the meaning of
The phrase “charges brought and tried” leaves no room for construction — it means to have formally brought an accused to account by means of complaint, information or indictment, and to then have adjudicated the accused‘s guilt or not. Charges brought and tried “separately” for purposes of section 667 means simply that prior formal proceedings leading to multiple adjudications of guilt must have been totally separate. (See People v. Ebner (1966) 64 Cal.2d 297, 304 [49 Cal. Rptr. 690, 411 P.2d 578] [construing similar language in California‘s former habitual criminal statute (former
Several cases illustrate this fundamental point. In People v. Kanos (1969) 70 Cal.2d 381 [74 Cal. Rptr. 902, 450 P.2d 278], the court contrasted former section 644, which provided enhanced punishment for certain crimes for those “previously twice convicted upon charges separately brought and tried,” with former
In People v. Wilks (1978) 21 Cal.3d 460 [146 Cal. Rptr. 364, 578 P.2d 1369], the defendant was found to have suffered four prior convictions within the meaning of former section 3024, subdivision (c), which provided a minimum prison term for those previously convicted of a felony. The defendant contended that only two prior convictions should have been found because three of the prior convictions resulted from a single, multicount information. The court rejected his contention, reasoning that under former section 3024, subdivision (c), it was immaterial how many prior convictions were suffered; one would suffice. The court also suggested, however, that the result may have been different had the defendant been adjudged an habitual criminal under former section 644 on the basis of multiple prior convictions “separately brought and tried.” (21 Cal.3d at pp. 469-470, fn. 9.)
And in People v. Baker (1985) 169 Cal. App.3d 58 [215 Cal. Rptr. 293], the defendant challenged multiple enhancements under
The phrase “charges brought and tried separately” has a well established and long understood meaning. The Attorney General himself recognized that meaning in his “Guide to Proposition 8,” in which it is stated, “Under subdivision (a) of Penal Code section 667, to qualify for enhancement a
In Flint, the defendant received one enhancement under section 667 for a prior serious felony offense to which he had pled guilty. The court rejected his argument that a guilty plea is not a conviction within the meaning of section 667. In reaching that conclusion, the court made the following statement about the application of section 667: “The purpose of the language `prior conviction on charges brought and tried separately’ is to disallow imposition of the statutory five-year enhancement for each of several crimes committed in one criminal escapade. Or as stated by Mr. Witkin (2 Witkin, Cal. Crimes (1963) § 1008, p. 956), the words do not apply where several prior convictions `are based on several counts of a single accusatory pleading.’ And see People v. Gump (1936) 17 Cal. App.2d 221, 223....” (180 Cal. App.3d at p. 20, italics in original.) The People seize upon that language and assert that defendant‘s sentence here could be properly enhanced twice for two prior convictions, despite the fact that they were adjudicated in the same criminal proceeding, because the prior underlying offenses were not committed in “one criminal escapade.” Aside from the fact that there is no evidence in the record to support the assertion that defendant‘s prior burglaries were not committed on a single occasion, we reject the People‘s argument for two reasons. First, the language in Flint on which the People rely is gratuitous. The defendant‘s sentence in that case was enhanced by only one prior conviction, and his contention on appeal went only to the effect of his guilty plea to the prior offense. Not at issue in that case were multiple enhancements based on multiple convictions arising out of a single criminal proceeding. Nor was the issue whether the defendant had committed multiple prior offenses in one criminal escapade. (5) It is well established that the issues decided in a case are those presented. “The holding of a decision is limited by the facts of the case being decided, notwithstanding the use of overly broad language by the court in stating the issue before it or its holding or in its reasoning. [Citations.]” (McGee v. Superior Court (1985) 176 Cal. App.3d 221, 226 [221 Cal. Rptr. 421].) Accordingly, the language in Flint on which the People rely is pure dictum.
Our second reason for rejecting the People‘s argument is more fundamental, however — Flint‘s dictum appears to recite an incorrect statement of the law. Flint ignores the plain meaning of the words “charges brought and tried separately” and, in the process, blurs the distinction between the formal adjudicatory process and the circumstances surrounding the commission of underlying multiple offenses. Indeed, Flint misreads Mr. Witkin when it suggests that separateness within the meaning of section 667 means separate criminal escapades. What Witkin really stated, in discussing former section 644, was that the qualification “upon charges separately brought and tried” meant that “the [habitual criminal] Act does not apply where the [multiple] convictions are based on several counts of a single accusatory pleading.” (2 Witkin, Cal. Crimes (1963) § 1008, p. 956.) In other words, one could not have been adjudged an habitual criminal under former section 644 (which necessarily required multiple prior convictions) unless the prior convictions arose from separate adjudicatory proceedings. Nowhere does Witkin suggest that whether or not the actual commission of the underlying prior offenses occurred on a single occasion (or “criminal escapade,” as it were) is determinative of habitual criminality. Witkin cited People v. Gump (1936) 17 Cal. App.2d 221 [61 P.2d 970], which Flint then cited in turn. Therein appears to lie the source of Flint‘s confusion of the issues. In Gump, the defendant was convicted, upon a single information and in one adjudicatory proceeding, of three crimes arising out of the same incident. He contended that these convictions could not be used to find him an habitual criminal within the meaning of former section 644. Gump phrased the issue as “whether all three verdicts should stand, thereby designating appellant as one convicted of three criminal offenses within the terms of [former] section 644 of the Penal Code defining `habitual criminals’ and therefore not eligible for release on parole.” (17 Cal. App.2d at p. 223.) Construing former section 644‘s limiting phrase “upon charges separately brought and tried,” the court concluded that it “clearly eliminate[d] the appellant from the operation of the section as he was not separately tried on the several charges....” (17 Cal. App.2d at p. 224, italics added.) The fact that the defendant‘s convictions in Gump arose from the same criminal episode was simply irrelevant to the issue decided. Accordingly, to the extent Flint‘s dictum would permit multiple enhancements for multiple prior convictions under section 667 regardless of how the prior criminal charges were formally adjudicated, so long as the underlying offenses were committed during separate “criminal escapades,” we decline to follow it, as it constitutes an incorrect statement of the law.6
IV*
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DISPOSITION
The judgment is modified to provide that defendant shall serve only one five-year enhancement pursuant to
Blease, Acting P.J., concurred.
SIMS, J.
I concur in all aspects of the majority opinion except for the discussion in part II concluding that “residential burglary” is the equivalent of first degree burglary. (But see
It is unnecessary to reach that issue in this case because the trial court adequately found the defendant had burglarized an inhabited dwelling within the meaning of the first degree burglary statute,
In this case, before imposing sentence at the sentencing hearing, the trial court stated: “Mr. Deay, you‘ve been convicted of a felony violation of Penal Code section 459, Residential Burglary as charged in Count I and also convicted of a felony violation of Penal Code section 459, Residential Burglary as charged in Count II of the information on file herein.” Each cited count of the information expressly charged defendant had entered “an inhabited dwelling and residence.” The court‘s remarks constitute an adequate finding that defendant burglarized inhabited dwellings. Since entry of an inhabited dwelling is the necessary criterion of first degree burglary (see People v. Brady (1987) 190 Cal. App.3d 124, 140 [235 Cal. Rptr. 248]), the court‘s findings at the sentencing hearing lawfully fixed the degree of the burglaries at first degree. (See People v. Anaya (1986) 179 Cal. App.3d 828, 831-832 [225 Cal. Rptr. 51].)
Notes
We also reject any suggestion that separateness for purposes of applying section 667 may be measured by some sort of section 654 analysis, viz, whether or not the offenses underlying the multiple prior convictions at issue were committed during an indivisible course of conduct and incident to a single intent and objective. (See Neal v. State of California (1960) 55 Cal.2d 11, 19 [9 Cal. Rptr. 607, 357 P.2d 839].) Not only does this type of analysis add superfluous language and meaning to section 667, it approves punishment under section 667 commensurate with a defendant‘s culpability for his prior offenses, not for his culpability as a recidivist. As such, it flies in the face of section 667‘s purpose, not to mention constitutional limitations upon section 667‘s application. (See People v. Jackson, supra, 37 Cal.3d 826, 833.)
We note further that, as to both priors, defendant here pled guilty, i.e., was “tried,” under one case number. This, however, is not dispositive of our conclusion that defendant was not tried separately for his prior convictions. Although we agree that separate case numbers may be evidence that multiple priors were brought separately, we reject any suggestion that, despite the fact the defendant pled guilty to both priors at the same time they may be deemed to have been tried separately simply because of the fortuity of their bearing different case numbers. In our view, and consistent with its purpose, section 667 contemplates temporal rather than administrative separateness. The random assignment of case numbers is not only inconclusive of a defendant‘s having been tried separately within the meaning of section 667; to measure separateness in this manner also opens a door to prosecutorial abuse of the p