People v. Hayes

6 Cal. App. 4th 616, 7 Cal. Rptr. 2d 866
California Court of Appeal·Decided May 12, 1992·No. D012890·Published·Cited by 7 cases

Opinion

6 Cal.App.4th 616 (1992)
7 Cal. Rptr.2d 866

THE PEOPLE, Plaintiff and Respondent,
v.
ALBERT HAYES, Defendant and Appellant.

Docket No. D012890.

Court of Appeals of California, Fourth District, Division One.

May 12, 1992.

*618 COUNSEL

David M. McKinney for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Harley D. Mayfield, Assistant Attorney General, Robert M. Foster and M. Howard Wayne, Deputy Attorneys General, for Plaintiff and Respondent.

[Opinion certified for partial publication.[1]]

OPINION

WIENER, Acting P.J.

In 1987, a jury convicted defendant Albert Hayes of attempted murder. It also found two alleged prior serious felony enhancements, a 1972 Texas robbery conviction and a 1980 California residential burglary conviction, were true. (Pen. Code, §§ 667, subd. (a), 1192.7, subd. *619 (c)(19).)[2] In an earlier opinion we reversed the judgment "insofar as it relate[d] to true findings on the two serious prior felony enhancements" because Hayes was denied his right to participate in that part of the trial involving the enhancements, but affirmed the judgment "[i]n all other respects." In the ensuing limited retrial, the jury found both priors were true. The court sentenced Hayes to an additional 10 years to be served consecutively to the previously imposed 12 years. Hayes again appeals. We affirm.

I

OUT-OF-STATE PRIOR CONVICTION

(1a), (2) (See fn. 3.) Hayes argues the court could not enhance his sentence on the basis of his earlier Texas robbery conviction because it does not constitute a serious felony within the meaning of sections 667 and 1192.7, subdivision (c)(19).[3]

Section 667, subdivision (a) provides "any person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive ... a five-year enhancement for each such prior conviction...." (Italics added.) Section 667, subdivision (d) defines a serious felony as any felony listed in subdivision (c) of section 1192.7. Included in that list is robbery. (See § 1192.7, subd. (c)(19.) While section 667 does not require that the foreign offense correspond to the particular crime in California (see People v. Reynolds (1991) 232 Cal. App.3d 1528, 1533 [284 Cal. Rptr. 356]),[4] the court below enhanced Hayes's sentence based upon a finding that Hayes's Texas robbery conviction included *620 all the elements of robbery under California law. Additionally, the parties here focus principally on robbery as the appropriate serious felony for purposes of enhancement. We therefore limit our discussion accordingly.

A.

(3) We first consider whether we may rely on the Texas information to which Hayes pled guilty to establish the elements of a California robbery were satisfied in this case. Hayes says we are limited to looking at the statutory elements of the prior offense and may not look to the specific facts underlying his previous conviction in determining whether the Texas offense would constitute a robbery under California law. Determining the correctness of Hayes's position, we examine three California Supreme Court decisions, People v. Crowson (1983) 33 Cal.3d 623 [190 Cal. Rptr. 165, 660 P.2d 389], People v. Alfaro (1986) 42 Cal.3d 627 [230 Cal. Rptr. 129, 724 P.2d 1154], and People v. Guerrero (1988) 44 Cal.3d 343 [243 Cal. Rptr. 688, 748 P.2d 1150].

In Crowson, the trial court imposed a one-year enhancement under section 667.5, providing for additional penalties for prior prison terms, on the basis of the defendant's previous federal drug conspiracy conviction. Unlike California's conspiracy statute (§ 184), federal law does not explicitly make commission of an overt act an element of the offense. The indictment to which the defendant pled guilty, however, specifically alleged two overt acts in support of the conspiracy charge. Rejecting the People's contention that such guilty plea established the defendant's federal conspiracy offense included all the elements of the corresponding California felony, the court held "enhancement is only permissible when the elements of the foreign crime, as defined by that jurisdiction's statutory or common law, include all of the elements of the California felony." (33 Cal.3d at p. 632, italics added.) In so ruling, the court relied upon (1) section 667.5's statutory language referring to a "specific crime as defined by law, and not simply to the actual conduct of the defendant" (33 Cal.3d at p. 633); (2) the unfairness inherent in giving "surplus" allegations in foreign allegations conclusive effect (id. at p. 634); and (3) a line of cases culminating in In re Finley (1968) 68 Cal.2d 389 [66 Cal. Rptr. 733, 438 P.2d 381], construing section 668, a parallel habitual offender statutory provision. (33 Cal.3d at pp. 633-634.)

Alfaro considered a similar issue with respect to a section 667 enhancement based upon a prior residential burglary conviction where the fact that a residence was involved was not an essential element of the offense. At the *621 time, section 667 permitted enhancement only when the prior burglary was of a residence. Relying on Crowson and dicta in People v. Jackson (1985) 37 Cal.3d 826 [210 Cal. Rptr. 623, 694 P.2d 736], Alfaro rejected the prosecution's attempt to prove the residential character of the prior burglary by defendant's guilty plea to a charging allegation that the burglary involved a residence. The court explained "the judgment in the [prior] burglary proceeding did not establish that defendant entered a residence. While the information so alleged, such entry was not an element of the crime." (Alfaro, supra, 42 Cal.3d at p. 636.) Reaffirming Crowson, the court emphasized "`the prosecution cannot go behind the record of the conviction ... to prove some fact which was not an element of the crime.'" (Id. at p. 636, quoting People v. Jackson, supra, 37 Cal.3d at p. 834.) The court further explicitly rejected the Attorney General's suggestion that the court "should at least permit proof based on the record in the court file." (Alfaro, supra, 42 Cal.3d at p. 635.)

Two years later, Guerrero addressed the identical issue presented in Alfaro — the defendant pled guilty or nolo contendre to a residential burglary allegation, where the type of structure was not an element of the offense. Responding to the Attorney General's request to reexamine Alfaro, the court initially noted Alfaro based its decision on Crowson which relied upon In re Finley, supra, 68 Cal.2d 389. After reviewing the Finley line of cases[5], the Guerrero court determined such cases did not support Alfaro and explicitly overruled it.

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People v. Hayes, 6 Cal. App. 4th 616, 7 Cal. Rptr. 2d 866 (Cal. Ct. App. 1992).

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