Opinion
Certified for Partial Publication
Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of parts I through IV.
Review Granted April 3, 1986.
Opinions on pages 1127-1306 omitted.
James L. Tolbert, Hollywood, under appointment by the Court of Appeal, for defendant and appellant.
John K. Van de Kamp, Atty. Gen., Mark Alan Hart, Supervising Deputy Atty. Gen., [223 Cal.Rptr. 309] Paul C. Ament, Deputy Atty. Gen., for plaintiff and respondent.
THOMPSON, Associate Justice.
Defendant Gerard Acosta appeals from the judgment of conviction of residential burglary (Pen.Code § 459) with enhancements for two prior serious felony convictions. Defendant admitted having suffered prior felony convictions for a 1980 second degree burglary and a 1982 attempted residential burglary. Defendant challenges the imposition of a five-year enhancement based on his admission of the prior 1980 second degree burglary. We modify the judgment by striking the five-year enhancement for the 1980 prior and in all other respects affirm the judgment.
In the unpublished portion of this opinion, we reject defendant's challenges to the admission of evidence at trial of an uncharged offense, the limiting instructions, and the use of a photographic identification procedure.
See footnote *, ante.
Factual and Procedural Background
II 2
Evidence of Uncharged Attempted Burglary
III 2
Limiting Instruction
IV 2
Photographic Identification
V
Enhancement for Prior Second Degree Burglary
The information alleged that defendant had been "convicted of a serious felony, to wit: Burglary, Second Degree, in violation of Section 459 of the Penal Code (Case No. C 44419) within the meaning of Penal Code Section 667(a)" in May 1980, and "a serious felony, to wit: Attempted Burglary, Residential, in violation of Section 664/459 of the Penal Code (Case No. A 454469), within the meaning of Penal Code Section 667(a)," in July 1982. After the court denied defendant's pretrial challenge to the application of section 667, subdivision (a), to these priors, defendant agreed to admit the priors as charged in the information.
In the course of administering the waivers and taking the admission to the 1980 second degree burglary prior, the following colloquy occurred:
"MR. MORRISON: [Counsel for Plaintiff]: Gerard Robert Acosta, as to case number C44419, do you admit that on or about the 27th day of May, 1980, in the Orange County Superior Court, you were convicted of a serious felony, to wit, residential burglary, in violation of Penal Code Section 459 within the meaning of Penal Code Section 667(a)?
"MR. RAMIREZ [Defense Counsel]: Your Honor, I believe the allegation states burglary, second degree. Doesn't state residential. We'll admit it as charged.
"MR. MORRISON: Very well.
"THE COURT: Which one is that, sir?
"MR. MORRISON: That's the first allegation.
"MR. RAMIREZ: Allegation No. 1.
"THE COURT: All right. Hold on a second.
"MR. MORRISON: Let me reread that, Your Honor.
"Gerard Robert Acosta, do you admit that or or about the 27th day of May, 1980, in the Superior Court of the State of California for the County of Orange, you were convicted of a serious felony, to wit, burglary in the second degree, in violation of Penal Code Section 459, in case number C44419, within the meaning of Penal Code Section 667, subdivision (a)?
"DEFENDANT: Yes."
The defendant then further expressly admitted the second alleged prior, the Los Angeles conviction on July 16, 1982, "of a serious felony, to wit, attempted burglary, residential, in violation of Section 664/459 [223 Cal.Rptr. 310] of the Penal Code, in case number A454469, within the meaning of Penal Code Section 667(a)."
Defense counsel joined in the waivers and concurred in the entry of the admissions "[w]ith the exceptions previously noted." The court confirmed that the record would reflect these limitations.
On appeal, defendant contends that the imposition of the five-year serious felony enhancement for the 1980 Orange County second degree burglary prior was improper. We agree.
In People v. Jackson (1985) 37 Cal.3d 826, 210 Cal.Rptr. 623, 694 P.2d 736, our Supreme Court recently considered the question of a serious felony enhancement for a prior second degree burglary.
The Jackson court explained:
"With respect to a prior burglary conviction, ... especially one such as defendant's which antedates Proposition 8, proof of the residential character of the burglary encounters obstacles.14 The record of a conviction for second degree burglary would not prove entry into a residence, even if the pleadings included superfluous allegations to that effect. (People v. Crowson [1983], supra, 33 Cal.3d 623, 634 [190 Cal.Rptr. 165, 660 P.2d 389].) .... ( [S]ee In re Finley [1968], supra, 68 Cal.2d 389, 393-394 [66 Cal.Rptr. 733, 438 P.2d 381]; In re McVickers (1946) 29 Cal.2d 264, 276 [176 P.2d 40]; People v. Hickey (1980) 109 Cal.App.3d 426, 438-439 [167 Cal.Rptr. 256].) A contrary holding, permitting the People to litigate the circumstances of a crime committed years in the past, would raise serious problems akin to double jeopardy and denial of speedy trial.
"There is no rule, however, which bars the defendant from admitting that a prior burglary involved entry into a residence, even if the prosecution is unable to prove the allegation. We permit a defendant in connection with a plea bargain to plead guilty to an offense with which he was not charged, and which the prosecution cannot prove, so long as it is reasonably related to defendant's conduct. [Citation.] A defendant should have the same latitude with respect to enhancements; if, as part of a bargain, he finds it advantageous to admit an enhancement which the prosecution may be unable to prove, Crowson does not prevent the court from giving effect to that admission." (People v. Jackson, supra, 37 Cal.3d at p. 836, 210 Cal.Rptr. 623, 694 P.2d 736.)
Footnote 14 of the above quoted passage provides:
"In a post-Proposition 8 case, for the reasons we have explained, an allegation that a burglary involved entry into a residence is not a superfluous allegation. Even if the case involved the first serious felony charge against the defendant, proof of the residential character of the burglary would expose defendant to an enhanced punishment if he committed a later serious crime. Consequently, admissions or findings that a burglary was of a residence, established on the record of the conviction, could be used in a later proceeding to prove that the defendant had previously been convicted of a serious felony."
The Jackson court held that "defendant, having admitted that both the current burglary and [an] alleged prior burglary involved entry into a residence, is subject to an enhanced sentence pursuant to section 667." (37 Cal.3d at p. 837, 210 Cal.Rptr. 623, 694 P.2d 736; italics added.) As was pointed out in People v. Brown (1985) 169 Cal.App.3d 313, 316, 215 Cal.Rptr. 150: "The language of Jackson makes clear that the Supreme Court requires that the defendant personally and expressly admit that the prior burglary involved entry into a residence."
Our review of the present record reveals no such express admission with respect to the 1980 second degree burglary prior. [223 Cal.Rptr. 311] Rather, our case is like People v. Garner (1985) 165 Cal.App.3d 145, 211 Cal.Rptr. 267, where the court held that the trial court improperly imposed serious felony enhancements. As in Garner, but unlike Jackson, the information did not allege that the pre-Proposition 8 burglary prior was residential and at no point in the proceedings did defendant expressly admit its residential nature. (Id., at p. 149, 211 Cal.Rptr. 267.)
Defendant does not challenge on appeal the imposition of a five-year enhancement for his prior 1982 attempted residential burglary conviction. Nor could such a contention prevail. Defendant personally and expressly admitted the residential nature of the attempted burglary, the information alleged it was residential and this was a post-Proposition 8 offense. (See People v. Jackson, supra, 37 Cal.3d at p. 836, fn. 14, 210 Cal.Rptr. 623, 694 P.2d 736.)
Indeed, the argument for the impropriety of the enhancement is even stronger here than in Garner. The record reflects that the defense expressly declined to admit a 1980 residential burglary. The admission of the conviction of this prior was specifically limited to a nonresidential second degree burglary as alleged in the information.
Furthermore, both Garner and Jackson involved admissions pursuant to a plea bargain. The Jackson court had reasoned: "When a defendant enters into a bargain to protect himself against uncertainty in the law, we see no reason why defendant should not be bound to the terms of his bargain and plea." (37 Cal.3d at p. 837, 210 Cal.Rptr. 623, 694 P.2d 736.) Here, however, defendant did not obtain the dismissal of any allegations in return for his admission. Thus, unlike Jackson, it cannot be said that, inasmuch as defendant entered into a fair plea bargain, he must be held to its terms.
The People urge us to disregard Garner and instead follow People v. Kane (1985) 165 Cal.App.3d 480, 211 Cal.Rptr. 628. In Kane, the court upheld the imposition of a five-year enhancement for a prior first degree burglary conviction where the information did not charge burglary of a residence and the defendant admitted he had suffered a prior conviction "within the meaning of Penal Code 667 and 1192.7." (Id., at p. 487, 211 Cal.Rptr. 628.) We, however, are not persuaded by the Kane court's conclusory statement that "[t]his admission constituted an adjudication that the structure burglarized was a residence." (Ibid.) We find far more persuasive the detailed analysis in Garner.
As the Garner court pointed out:
"Throughout Jackson are repeated statements which persuade us that the Supreme Court contemplated an express allegation of the second degree burglary's residential nature. In discussing proof of the residential nature of the current crime, for example, the court said that 'entry into a residence... was properly pled as an essential element of the serious felony enhancement provided by section 667.' [Peo. v. Jackson, supra, 37 Cal.3d at p. 835, 210 Cal.Rptr. 623, 694 P.2d 736]. The court described the 'residence' allegation as 'not superfluous, but essential to notify defendant that the prosecution intended to prove the elements essential to an enhancement under section 667.' (Ibid.) That the present information did not adequately allege the residential nature of [the 1980] prior, is, to us, an ineluctable conclusion." (165 Cal.App.3d at p. 150, 211 Cal.Rptr. 267.)
Accordingly, the enhancement for the 1980 prior must be stricken.
Disposition
The judgment is modified to strike the finding that defendant had suffered a prior serious felony conviction in 1980 within the meaning of Penal Code section 667 and the additional term imposed based on such finding. The trial court is directed to prepare an amended abstract of judgment which reflects said modification and to forward a certified copy of same forthwith to the appropriate authorities. As so modified, the judgment is affirmed.
LILLIE, P.J., and JOHNSON, J., concur.