Brief Bank # B-875 (Re: 17.24.2 n5 / EA VI(J) [Second Degree Residential Burglary Is Not A Serious Felony (PC 1192.7(c))].)
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Date of Brief: February, 2001.
1. APPELLANT’S SENTENCE OF 25 YEARS TO LIFE WAS IMPOSED IN VIOLATION OF HIS RIGHTS TO DUE PROCESS AND FREEDOM FROM CRUEL AND UNUSUAL PUNISHMENT BECAUSE NONE OF HIS PRIOR CONVICTIONS WERE SERIOUS FELONIES AS DEFINSID BY PENAL CODE SECTION 1192.7.
A. Factual Background
On November 24, 1999, appellant’s prior convictions were tried to the court. The prosecutor introduced into evidence 12 exhibits consisting of certified copies of various documents. Exhibits I through 3 and 12 were used for identification purposes only. [FOOT NOTE 1].Exhibits 4 through 11 were used to prove five prior burglary convictions entered between 1980 and 1982 resulted from appellant’s plea of guilty to “second degree” burglaries. (Aug. CT 8-11, 77-81, 90-92, 97-99.) The trial court found each prior conviction allegation true, and found that each prior burglary was a “residential” burglary for the purpose of sentencing. (Aug. CT 108-109; Aug. RT Findings 3-5.)
B. Only “First Degree” Burglaries Are “Serious Felonies” For The Purpose Of Sentencing Pursuant To The “Three Strikes” Law.
1. Penal Code Section I 1192.7 Expressly Defines Only First Degree Burglaries As Serious Felonies.
California’s “Three Strikes” law is codified in part Penal Code section 667, which provides that where a defendant is convicted of a felony, and has two prior serious or violent felony convictions, he may be sentenced to an indeterminate term of 25 years to life. (Pen. Code § 667, subd. (e).) [FOOTNOTE 2] A “serious felony” is a felony defined pursuant to section ll92.7, subdivision (c). (§667, subd. (d).)
On March 7, 2000, the voters of the state of California passed Proposition 21, the Gang Violence and Juvenile Crime Act of 1998. In addition to making changes to statutory provisions relating specifically to juvenile crime, the Act amended section 1192.7, subdivision (c), paragraph (18), defining which burglary convictions are considered “serious felonies” for the purposes of sentencing under the “Three Strikes” law.[FOOTNOTE 3]. Pursuant to the amendment, subdivision (C), paragraph (18) of section 1192.7 provides “any burglary of the first degree” is a “serious felony”.
2. The Amendment Fashioned By Proposition 21 Prohibits The Trial Court From Considering The Record Of Conviction To Determine Whether The Burglary Was Residential.
Since it’s creation by Proposition 8 in 1982, and until the passage of Proposition 21 section I192.7 had defined serious felony burglaries in terms of their residential nature. (People v, Cruz (1996) 13 Cal.4th 764, 772-773; People v. Jackson (1985) 37 Cal.3d 826, 832) Immediately prior to the passage of Proposition 21, the language in subdivision (c), paragraph (18) mirrored the language defining ‘first degree’ burglary in section 460 and provided that any “[b]urglary of an inhabited dwelling house, vessel, as defined in the Harbors and Navigation Code, which is inhabited and designed for habitation, floating home, as defined in subdivision (d) of section 18075.55 of the Health and Safety Code, trailer coach, as defined by the Vehicle Code, or the inhabitedportion of any other building “ is a “serious felony.” This provision has consistently been construed as defining a serious felony burglary in terms of its “conduct” rather than in terms of an “offense”. (People v. Cruz, supra, 13 Cal.4th at pp. 772-773; People v. Alfaro (I 986) 42 Cal.3d 627, 634, [FOOTNOTE 4] People v. Jackson, supra , 37 Cal.3d at p. 832.)
However, in passing Proposition 21, the voters amended subdivision (c), paragraph (18) of section 1192.7 to define serious felony burglaries in terms of an “offense” – i.e., “first degree burglary” – rather than in terms of “conduct’. Thus, the rationale central to Jackson’s holding that the legislative body enacting the law was concerned with “conduct and not “offenses”` has been eliminated. Therefore, there is no need to “go behind” a judgment of conviction for “second degree” burglary in order to determine the residential nature of the conduct. The trial court’s endeavor in this regard was erroneous, and its findings irrelevant to a determination whether appellants prior burglaries should be considered “strikes”.
3. In anticipation of the State’s Response, Appellant Submits That No Legislative Intent Argument Mandates An Alternative Construction of the Amendment.
a. The Amendment is a Clear Departure from Previous Language as Interpreted by the Courts of this State.
Prior to Proposition 21’s amendment, the language in subdivision(c), paragraph (18) of section I192.7 was comprehensive, descriptive of conduct, and mirrored the language of the current definition of first degree burglary in section 460. In People v. Cruz, supra, 13 Cal.4th 764. the California Supreme Court was required to construe a previously existing version of paragraph (18). An inconsistency between sections 460 and 1192.7 had been created when the Legislature added “vessels” to the list of “dwellings” in section 460 without making the corresponding change in section 1192.7, subdivision (c), paragraph (18). The Court reasoned that the historical development of the definition of a “serious felony” burglary had always, as noted here previously, followed the course of defining conduct which was particularly threatening, and therefore, deserving of enhanced punishment. (People v. Cruz, supra, 13 Cal.4th at pp. 772-773.) The Court held the term ‘dwelling house’ contained in paragraph (18) was sufficiently broad to encompass the changing list of structures contained in section 460. (Id., at pp. 776-779.) Further, the Court held, since the Legislature expressed an intent to “clarify” existing law when it amended paragraph (18) in 1986, it was reasonable to construe the conduct described in paragraph (18) to track the conduct described in section 460 defining “first degree” burglary. (Id., at p. 781.)
Subsequent to Cruz, the Legislature again amended section 1192.7, subdivision (c), paragraph (18) in an express effort to codify the holding in Cruz, to include the more recent amendments to section 460 and to mirror the then current language in that section. (Report of the Senate Cttee. On Public Safety, 1997-98 Regular Session, AB 357 (Havice), as Amended June 24,1998, Stats., 1998 ch. 754- § 1.)
However, the amendment wrought by Proposition 21 is a clear departure from such a course. The definition of a “serious felony” burglary contained in section 1192.7, subdivision (c), paragraph (18) no longer mirrors the list of “dwellings” in section 480. The broadly applicable term “dwelling house is no longer used. Nor is a “serious felony,” burglary defined in terms of conduct or the burglary’s residential nature. Now, “serious felony” burglaries are defined in terms of the offense of “first degree” burglary.
b. Section 1192.7, Subdivision (c), Paragraph (18) Must Be Contrued According to the Plain Meaning of It’s Language.
In ascertaining the intent of the legislature, or voters, the court must first look to the express language of the statute and give the words their plain, ordinary meaning. (People v. Craft (I 986) 41 Cal.3d 554, 559-560.) Only where an ambiguity appears on the face of the statute will the court look to legislative history. (Id., at p. 560.) The express language of the amendment made by Proposition 21, given its plain meaning, required that the prosecution here prove that appellant’s prior burglary convictions were first degree burglaries.
It is anticipated that the State will argue that the voters generally intended to increase punishment in the enactment of Proposition 21, Appellant acknowledges that generally, that is the thrust of the initiative. However, regarding the specific issue raised here – the definition of prior burglaries as “strikes” – there is no express or implicit indication that the drafters of the initiative or the voters intended to exacerbate punishment therefor rather than to ameliorate it.
c. Materials Submitted to the Voters Do Not Indicate A Clear Intent Regarding This Amendment.
In the three pages of the Legislative Analyst’s summary of the initiative, only 16 lines addressed the effect of the measure on the “Three Strikes” law. There, the Legislative Analyst stated:
This measure revises the lists of specific crimes defined as serious or violent offenses, thus making most of them subject to the longer sentence provisions of existing law related to serious and violent offenses. In addition, these crimes would count as “strikes” under the Three Strikes law.
(Ballot Pamp., Analysis by the Legislative Analyst, Prop. 21 as presented to the voters, Gen. Elec. (March 7, 2000), pp. 46-47, emphasis added.)
A table outlining the “fiscal effects” of Proposition 21 provided that it “adds crimes to the serious and violent felony lists.” (Id., at p. 47.) Proposition 21 expressly added approximately a dozen crimes to the lists of violent and serious felonies with some duplication (See § 667.5, subd. (c) and § 1192.7, subd. (c).) The amendment to the burglary language should not be considered an “addition” to the list of “serious felonies”, because “residential” burglary was already on the list. The amendment traded one type of burglary for another, rather than making an additional type of burglary a “serious felony.” Therefore, the analysis, focusing on the “additional” crimes,provided the voters no information regarding this specific amendment at all. Even if the amendment were read as “adding” first degree” burglary to the list, the Legislative Analyst stated only that “most” of those on the list will subject the offender to longer sentences, negating any claim that the drafters or the voters intended to increase punishment for all offenses.
The arguments for and against Proposition 21 published in the voters’ pamphlet provided no enlightenment regarding the proposition’s effect on the “Three Strikes” law. They were dedicated almost exclusively to the juvenile crime provisions. However, they did inform the voters that the amendments to the “Three Strikes” law would have a drastic economic impact on the state. (Ballot Pamp., supra, Argument in Favor, Argument Against and Rebuttal to arguments, at pp. 48-49.) This was echoed in the Legislative Analyst’s table. (Id., at p. 47.) Thus, unless the voters read the text of the initiative, and thereby learned how the initiative would effect the “Three Strikes” law, they would only have known that “most”, but not all of the amendments would result in increased punishment and that the provisions will be expensive.
The ameliorative effect of this amendment is to remove from consideration as strikes “second degree” burglary convictions for offenses committed beforeJanuary 1, 1983. “Second degree” burglaries committed prior to that date have routinely been the subject of litigation in order to determine whether they were residential in nature and therefore “serious felonies” for sentencing purposes. (People v. Reed (1 996) 13 Cal.4th 217, 222; People v. Moenius (I 998) 60 Cal.App.4th 820, 824-827.) Any “first degree” burglary committed after that date is, by definition, residential in nature (People v. Cruz, supra, 13 Cal.4th at p. 770; People v. Jackson, supra, 37 Cal.3d at p. 835, fn. 11; stats. 1982 ch. 1297, § 1), and has, therefore, not resulted in much litigation.
While it has been recognized that the “Three Strikes” law has had a salutary effect on the adult crime rate in Califiomia (Ballot Pamp, supra, Prop. 21,§ 2 (c)) [FOOTNOTE 5], it has also been widely publicized that the sentencing scheme has clogged the courts, jails and prisons with defendants who are not habitual “serious” or “violent” felons, but who nevertheless fit the technical definition of a “second striker” or “third striker”[FOOTNOTE 6] By amending the language of section 1192.7, the voters have indicated an intent that those defendants like appellant, whose only “strikes” consist of “second degree,” burglary convictions, dating from prior to January 1, 1983, should not come within “Three Strikes” sentencing scheme because the benefit to society is outweighed by the cost of adjudicating and incarcerating them.
In spite of the lack of an express indication of voter intent regarding this amendment, the departure from the historical approach to defining “serious felony” burglaries is unmistakable in the language used. The plain language of the statute expressly and unambiguously requires that prior burglary convictions constituting “strikes” be “first degree” burglaries only. There is no readily discernible legislative intent to the contrary, Therefore, this court must construe section 1192.7, subdivision (c), paragraph (18) to require that any prior burglary alleged for the jpurpose of sentencing pursuant to the “Three Strikes” law be pled and proved as a “first degree” burglary. To do otherwise would be to violate the prohibition against legislating from the bench by reading language into the amendment.(In re Haines (1924) 68 Cal.App.3d 522, 528 [FOOTNOTE 7], Code Civ. Proc. § 1858.)
C. None Of The Appellant’s Priors Were “First Degree” Burglaries.
Each of the prior convictions proved by the state here were for “second degree” burglaries. (Aug. CT 8-11, 77-81. 90-92, 97-99.) As previously discussed, since the statute does not define “serious felony’ in terms of the nature of the prior burglary conviction, but limits itself to the degree of the prior conviction, a trial court is no longer permitted to “go behind” the plea to determine whether, notwithstanding the plea, the offense was residential in nature.
A finding that the elements of a sentence enhancement have been proved must be supported by substantial evidence. (People v. Moenius, supre, 60 Cal.App.4th at pp, 823-824; People v Williams (1996) 50 Cal,App.4th 1405, 1412.) Where a defendant issentenced under the “Three Strikes”‘ law in the absence of substantial evidence that the prior convictions are “serious” or “violent” felonies and in contravention of statutory authority, the defendants deprived of his right to be free from cruel and unusual punishment (People v. Superior Court (Romero), supra, 13 Cal-4th at pp. 530-531; People v. Marshall (1990) 50 Cal.3d 907, 938), and his right to due process (Hicks v. Oklahoma (1980) 447 U.S. 343, 346 (65 L. Ed. 2d 175, 100 S. Ct. 2227]; Whalen v. United States (1980) 445 U.S. 684, 689-90 n.4 [63 L. Ed. 2d 715. 1 00 S. Ct. 1432]).
Due to the fact that each prior conviction here was for “second degree” burglary, the trial court’s findings that each of the priors constituted a “strike” must be reversed. Appellant’s judgment must be vacated and the matter remanded for sentencing.
Footnote 1: Appellant’s counsel stipulated that the identification report was correct, and that appellant was the person who suffered the prior convictions. (Aug. RT 8)
Footnote 2: Except as otherwise stated, further references to statutory provisions are to the Penal Code.
Footnote 3: Appellant’s current offenses pre-date the passage of Proposition 21. However, his sentence was imposed on May 12, 2000, after the passage of the initiative measure. (CT 76, 243) Further, the amendment to subdivision (C), paragraph (18) of section 1192.7 wrought by Proposition 21 is amellorative. Thus, the amendment, is applicable to him. (In re Estrada (1965) 63 Cal.2d 740, 742-748; People v Roberts (1994) 24 Cal. App. 4th 1462, 1466)
Footnote 4: Overruled on other grounds in People v Guerrero (1988) 44 Cal. 3d 343,355.
Footnote 5: See also, Press Release, California Secretary of State, BJ00:51,May 5,2000
Footnote 6: See e.g., Legislative Analyst’s Office, Analyst’s office, Analysis of the 1995-1996 Budget Bill, The Three Strikes and You’re Out Law; Three Strikes and You’re Out: A Review of State Legislation, National Institute of Justice, United States Department of Justice (January 1997); Parker, Robert Nash and Valerie J. Callanan, Presley Center for Crime and Justice Studies, University of California, Riverside, (November 12, 1999 press release); Little Hoover Commission Report (January 1998), p. 17; Bray, Rose, The Case Against California’s 3 Strikes Law, San Francisco Chronicle (December 30, 1998) p. A17; Gladstone, Mark, County Asks State to Pay for 3 Strikes Costs, Los Angeles Times (March 27, 1998); Meyer, Josh, Courthouse Projects 0 Courtrooms, Los Angeles Times (March 11,1998), p.a 16: Pfeiffer, Stuart, 3-Strikes Cases Proving Costly, Orange County Register (June 10, 1 996), p. Metro 1; Furillo, Andy, Begging Help for Swamped Courts, Jails, Sacramento Bee (March 31, 1996); Three Strikes’ Law Increases Burdens on Judges, Courts, Assoc. Press, Los Angeles Times (February 18, 1996).