Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC618060.
Mihara, J.
Defendant Wanda Jenette Fernandez appeals from a judgment of conviction entered after she pleaded no contest to petty theft with a prior conviction (Pen. Code, § 666) and admitted that she served three prior prison terms (§ 667.5, subd. (b)), and suffered a prior strike conviction (§§ 667, subd. (b)-(i), 1170.12). The trial court sentenced defendant to five years in state prison. We reject defendant’s contention that the trial court erred in denying her motion to withdraw her admission of a prior strike conviction and affirm the judgment.
All further statutory references are to the Penal Code.
I. Statement of Facts
On January 22, 2006, defendant walked out of Sears with an armful of clothing that was still on hangers and had sensor tags. Defendant admitted to the police that she had stolen this merchandise.
I. Discussion
Defendant contends that the trial court erred in denying her motion to withdraw her admission of a prior strike conviction, because her prior second degree burglary conviction was not a conviction within the meaning of the “Three Strikes” law.
A. Background
The information alleged that defendant had suffered a prior strike conviction, because she had previously been convicted of first degree burglary. At the entry of plea hearing, defendant admitted that she had previously committed a first degree burglary. Defendant later brought a motion to withdraw this admission on the ground that her prior burglary conviction was not a strike crime. The parties agreed that defendant’s prior strike conviction in 1980 was for second degree burglary. However, the prosecutor argued, and the record established, that the second degree burglary was of a residence. The trial court found that the prior conviction qualified as a strike, and denied the motion. The trial court then dismissed the strike conviction in the interests of justice.
B. Analysis
To constitute a strike, a conviction must be for “[a]ny offense defined in subdivision (c) of Section 667.5 as a violent felony or any offense defined in subdivision (c) of Section 1192.7 as a serious felony. . . .” (§ 667, subd. (d)(1).) Among the violent felonies listed in section 667.5, subdivision (c) is “[a]ny burglary of the first degree, as defined in subdivision (a) of Section 460, wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary.” (§ 667.5, subd. (c)(21).) Among the serious felonies listed in section 1192.7, subdivision (c) is “any burglary of the first degree.” (§ 1192.7, subd. (c)(18.)
Section 460, subdivision (a) states: “Every burglary 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, or trailer coach, as defined by the Vehicle Code, or the inhabited portion of any other building, is burglary of the first degree.”
Defendant argues that Proposition 21, which was adopted in the primary election in March 2000, redefined a serious felony under section 1192.7, subdivision (c)(18) by identifying a specific crime rather than conduct. More specifically, defendant argues that “there is a congruence between the description of the serious felony of burglary in section 1192.7, subdivision (c)(18) and a specific crime. Subdivision (c)(18) now specifies simply ‘any burglary of the first degree.’ The subdivision identifies a specific crime; it does not refer to conduct. Thus, the reasoning of Guerrero now works against the principle the trial court applied. Because the law, as it now reads, identifies the specific crime of ‘burglary of the first degree’ rather than the conduct of entering a residence with the intent to commit larceny or any felony, only those convicted of ‘burglary of the first degree, ’ not those convicted of burglary of the second degree whose conduct consisted of entering a residence with the prohibited intent, have suffered a serious felony conviction for purposes of the Three Strikes Law.”
In People v. Guerrero (1988) 44 Cal.3d 343 (Guerrero), the Supreme Court relied on People v. Jackson (1985) 37 Cal.3d 826 for the proposition that the serious felonies in section 1192.7, subdivision (c) referred to criminal conduct, not specific criminal offenses. (Guerrero, supra, at pp. 347-348.)
This court considered and rejected defendant’s argument in People v. Garrett (2001) 92 Cal.App.4th 1417 (Garrett). In Garrett, the trial court found that the defendant’s five prior second degree burglary convictions, which were committed between 1980 and 1982, constituted strikes. (Id. at p. 1421.) On appeal, the defendant reasoned that “because Proposition 21 amended section 1192.7(c)(18) ‘to define serious felony burglaries in terms of an “offense”–i.e., “first degree burglary”–rather than in terms of “conduct, ” . . . 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.’ Defendant maintains that the trial court erred in considering the record of conviction to determine whether his prior burglaries were residential.” (Id. at pp. 1421-1422, fn. omitted.)
In Garrett, this court observed that the intent of Proposition 21 was to provide for longer sentences and greater punishment, and thus it expanded the list of serious felonies. (Garrett, supra, at pp. 1425-1427, 1432.) Noting that “[s]ection 1192.7[, subdivision] (c)(18) does not refer to the statute defining first degree burglary, section 460, subdivision (a) specifically” (id. at p. 1431), this court reasoned that since specific statutory references appeared in related penal statutes and in Proposition 21, the Legislature knew “‘how to use language expressly requiring a violation of [a specific statute] when that [was] their intent.’” (Id. at p. 1432, quoting People v. Murphy (2001) 25 Cal.4th 136, 143.) The Garrett court then concluded: “If we agreed with defendant that the purpose of the Proposition 21 change to section 1192.7[, subdivision] (c)(18) was to define the serious felony burglary to avoid litigation over pre-1982 second degree burglaries or to give leniency to a class of by now middle-aged or elderly residential burglars who plied their trade before 1983, we run counter to the established interpretation of the words ‘mak[e] offenders subject to longer prison sentences.’ (Guide, supra, Figure 1-Prop. 21 Summary of Fiscal Effects of Major Provisions, p. 47, original italics.) We also would be saying that the electorate before 2000 wanted all residential burglaries to add to the punishment of a recidivist, but in 2000, without saying so, changed its mind contrary to the stated intent in the ballot pamphlet and in previous case law. We may not make this leap.” (Id. at p. 1432.)
Defendant argues that Garrett was wrongly decided, because this court went beyond the language of section 1192.7. We disagree. As this court stated in Garrett, “[w]here uncertainty regarding a statute’s construction exists, the court must consider the consequences that will flow from a particular interpretation. [Citation.]” (Garrett, supra, 92 Cal.App.4th at p. 1432.)
Defendant’s reliance on People v. Maestas (2006) 143 Cal.App.4th 247 (Maestas) is misplaced. In Maestas, the trial court sentenced the defendant under the Three Strikes law based on two 1992 second degree burglaries. (Id. at pp. 249-250.) The Maestas court reasoned that in the prior proceeding the “defendant was charged with first degree burglary, but those counts were dismissed. Instead, he pled to second degree burglary. The plea agreement meant that defendant did not admit that he burgled a residence, and the People abandoned their effort to prove it was a residence. In effect, the plea agreement established that the structure was not a residence. The trial court’s finding that defendant committed prior first degree burglaries contradicted his convictions of second degree burglary. The court may look beyond the fact of the conviction but not beyond logic and reason.” (Id. at p. 253.) The present case is distinguishable from Maestas. In Maestas, the defendant’s second degree burglary, as a matter of law, could not have been residential. (Id. at p. 252.) Here, however, when defendant committed second degree burglary, first degree burglary was defined as the burglary of a specified inhabited property at night, and thus could have been residential, yet second degree, because it was not committed at night. (Garrett, supra, 92 Cal.App.4th at p. 1423.)
II. Disposition
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.