Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County. No. 1233140. Hurl W. Johnson III, Judge.
William Malloy, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Charles A. French, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Poochigian, J.
INTRODUCTION
Defendant, James Orlando Lucero, was convicted after a jury trial of one count of possession of heroin (Health & Saf. Code, § 11350, subd. (a)), with five prior serious felony convictions within the meaning of the three strikes law (Pen. Code, § 667, subd. (d)) and five prior prison term enhancements (§ 667.5, subd. (b)) found true. He was sentenced to the third strike term of 25 years to life.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends his third strike indeterminate term violates the federal and state constitutional prohibitions against cruel and/or unusual punishment. He also challenges three of the five prior strike convictions, which are based on burglary convictions in Utah, and contends there is insufficient evidence that the Utah convictions were for burglaries of inhabited dwellings, such that the offenses are not serious felonies under California law. We will affirm.
FACTS
At 4:30 p.m. on August 28, 2007, Modesto Police Officers Phillips and Morse responded to Yosemite Car Wash on a dispatch that a man was yelling at himself, holding a water nozzle, and pretending to wash his car. The officers arrived and found defendant standing next to a car in the car wash’s carport, holding a water nozzle and talking to himself.
The officers contacted defendant and he provided his identification. Defendant said a relative recently gave him the car. Officer Phillips searched defendant and found 0.09 grams of black tar heroin in the coin pocket of defendant’s pants. Phillips found a hypodermic needle syringe on top of the drain on the ground of the car wash stall. Officer Morse searched the car and found a syringe in the pocket of the driver’s side door panel. Both syringes were discolored and appeared to have been repeatedly used for heroin.
The court excluded evidence that defendant advised the officers he was on parole and subject to a search condition.
Defendant was charged with count I, felony possession of heroin, and count II, misdemeanor possession of a needle/syringe (Bus. & Prof. Code, § 4140). After a jury trial, defendant was found guilty of count I and not guilty of count II, and all special allegations were found true.
DISCUSSION
I.
CRUEL AND/OR UNUSUAL PUNISHMENT
Defendant contends the imposition of a third strike term for count I, possession of 0.09 grams of heroin, violates the federal and state constitutional prohibitions against cruel and/or unusual punishment.
The purpose of the three strikes law is not to subject a criminal defendant to a life sentence merely on the basis of the latest offense. Rather, the purpose is to punish recidivist behavior. (People v. Diaz (1996) 41 Cal.App.4th 1424, 1431; People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630-1631.) Habitual offender statutes have withstood constitutional scrutiny based on assertions of cruel and unusual punishment, as well as claims of a disproportionate sentence. (See People v. Ayon (1996) 46 Cal.App.4th 385, 398-400, overruled on other grounds in People v. Deloza (1998) 18 Cal.4th 585, 593-595, 600.)
According to the appellate record, defendant (born 1946) has a lengthy criminal record in both California and Utah. In 1970, defendant was convicted of grand theft auto in Sonoma County and sentenced to five months in jail. In 1974, defendant was convicted of felony forgery in Utah and sentenced to prison. Also in 1974, he was convicted of conspiracy to commit attempted burglary in Utah and sentenced to one year in prison. In 1981, he was convicted of felony theft by receiving in Utah and placed on probation. Also in 1981, he was convicted of burglary of a dwelling in Utah and sentenced to 1 to 15 years in prison.
In issue II, post, we will address defendant’s argument as to whether his felony burglary convictions in Utah are serious felonies in California.
In 1984, defendant was again convicted of burglary of a dwelling in Utah and again sentenced to 1 to 15 years. In 1992, defendant was convicted of misdemeanor petty theft (§ 484, subd. (a)) in Stanislaus County. In 1993, he was convicted of attempted first degree burglary (§§ 664/459) in Stanislaus County and sentenced to two years in prison. In 1996, defendant was again convicted of burglary of a dwelling in Utah and sentenced to 1 to 15 years in prison. In June 2001 and January 2002, he violated parole. In January 2002, he was convicted of first degree burglary (§ 459) in Stanislaus County and sentenced to two years in prison. In July 2003, he was convicted of petty theft with a prior theft-related conviction (§ 666) in Stanislaus County and sentenced to three years in prison. In May 2007, he was released from state prison in California, and he was on parole when he committed the instant offense.
Defendant argues this court must focus on the seriousness of the current offense in determining whether his third strike term violates the United States and California Constitutions, and that the instant conviction for possession of heroin was “a passive, nonviolent offense” that posed no danger to society and he would have received a relatively light prison sentence but for the prior strike convictions. However, “society’s interest in deterring criminal conduct or punishing criminals is not always determined by the presence or absence of violence. [Citations.] [Defendant’s] intractable recidivism, coupled with his current offense[s], justify the term imposed.” (People v. Cooper (1996) 43 Cal.App.4th 815, 826.) Moreover, defendant is being punished not merely for the current offense but also because of his recidivism. (People v. Romero (2002) 99 Cal.App.4th 1418, 1432.) In evaluating the factors set forth in In re Lynch (1972) 8 Cal.3d 410, defendant’s sentence is not so disproportionate to the crime that it shocks the conscience, and it does not violate the state constitutional prohibition against cruel or unusual punishment. (See People v. Stone (1999) 75 Cal.App.4th 707, 715; People v. Martinez (1999) 71 Cal.App.4th 1502, 1510-1517; People v. Cooper, supra, 43 Cal.App.4th 815, 825-828; People v. Cline (1998) 60 Cal.App.4th 1327, 1337-1338.)
In addition, defendant cannot demonstrate that his sentence violates the prohibition against cruel and unusual punishment contained in the federal Constitution. (Lockyer v. Andrade (2003) 538 U.S. 63, 66-67, 77 (Andrade); Ewing v. California (2003) 538 U.S. 11, 29-31 (Ewing); People v. Cooper, supra, 43 Cal.App.4th at pp. 820-825.) In Ewing, the United States Supreme Court held that the cruel and unusual punishment clause of the federal Constitution contains a narrow proportionality principle that prohibits grossly disproportionate sentences. (Ewing, supra, 538 U.S. at p. 23.) The court upheld a 25-year-to-life sentence under the three strikes law for a defendant with prior burglary and robbery convictions who shoplifted three golf clubs. (Id. at pp. 17-18, 29-31; see also Andrade, supra, 538 U.S. at pp. 66-68, 77 [two consecutive terms of 25 years to life under three strikes law for thefts of videotapes not grossly disproportionate].)
Defendant contends his situation is similar to that addressed in People v. Carmony (2005) 127 Cal.App.4th 1066, where the court found a third strike sentence of 25 years to life imposed for the defendant’s failure to reregister as a sex offender violated both the federal and state constitutional prohibitions against cruel and/or unusual punishment. In doing so, the court emphasized that defendant had in fact registered, and his failure to reregister was a purely technical violation with no practical effect. (Id. at p. 1078.) “Here, there was no new information to update and the state was aware of that fact. Accordingly, the requirement that defendant reregister within five days of his birthday served no stated or rational purpose of the registration law and posed no danger or harm to anyone.” (Id. at p. 1073.) “Because a 25-year recidivist sentence imposed solely for failure to provide duplicate information is grossly disproportionate to the offense, shocks the conscience of the court and offends notions of human dignity, it constitutes cruel and unusual punishment under both the state and federal Constitutions.” (Ibid.) The court specifically declined to consider “the appropriateness of a recidivist penalty when the predicate offense does not involve a duplicate registration.” (Id. at p. 1073, fn. 3.)
In contrast to People v. Carmony, supra, 127 Cal.App.4th 1066, defendant’s conviction in the instant case was not for a technical violation of the law that “served no stated or rational purpose.” (Id. at p. 1073.) Defendant’s case is clearly within the parameters set by Ewing and Andrade. “If terms of 25 years to life and 50 years to life are not ‘“grossly disproportionate”’ for petty theft with prior felony convictions,” then the indeterminate term imposed in this case is not grossly disproportionate to the offense of possession of a controlled substance given defendant’s criminal history, including his numerous prior strike convictions and lengthy periods of incarceration. (People v. Em (2009) 171 Cal.App.4th 964, 977; see Andrade, supra, 538 U.S. at p. 77; Ewing, supra, 538 U.S. at pp. 28-30; People v. Romero, supra, 99 Cal.App.4th at pp. 1432-1433.)
II.
THE UTAH BURGLARY CONVICTIONS
The court, acting as trier of fact, found true the allegations in the second amended information that defendant had five prior strike convictions. Two of the five prior strikes were for felony offenses committed in Stanislaus County: attempted first degree burglary in 1993 and first degree burglary in 2002. Defendant does not challenge the sufficiency of the evidence that the Stanislaus County convictions were strike offenses.
However, three of defendant’s five prior strike convictions were for the felony offenses of “burglary of a dwelling” committed in Utah in 1981, 1984, and 1996, in violation of sections 76-6-202 and 76-2-202 of the Utah Code Annotated (1953).
Defendant contends there is insufficient evidence that the Utah prior convictions for burglary of a dwelling constitute serious felonies and strikes in California because there is no evidence the dwellings were inhabited as required for first degree burglary in California. Defendant further contends that the 1981 Utah burglary conviction is not a serious felony because he could have committed that offense by entering or “remaining” in an inhabited dwelling with intent to commit a theft, as defined by Utah’s burglary statute, whereas a burglary in California can only be committed by “entering” an inhabited dwelling with the requisite intent. Defendant further contends the prosecution’s failure to prove the special allegations violated his constitutional rights.
In order to resolve this issue, we will review the definitions of burglary in California and Utah, the well-settled principles as to the determination of whether a felony from a foreign jurisdiction is a strike, the prosecution’s evidence as to defendant’s prior convictions in Utah, and the nature of the record of conviction in Utah.
A. Burglary in California and Utah
A prior felony conviction is a strike if it is either a serious felony as defined by section 1192.7, subdivision (c) or a violent felony as defined in section 667.5, subdivision (c). (§ 667, subd. (d)(1).) As relevant to the instant case, section 1192.7, subdivision (c)(18) defines “any burglary of the first degree” as a serious felony.
A burglary is committed when a person “enters any house, room, apartment..., with intent to commit grand or petit larceny or any felony....” (§ 459.) “Every burglary of an inhabited dwelling house... or the inhabited portion of any other building, is burglary of the first degree.” (§ 460, subd. (a).) All other kinds of burglary are of the second degree. (§ 460, subd. (b).)
Thus, “[o]nly the burglary of inhabited dwellings constitutes burglary in the first degree, a serious crime meant to protect important societal policies. [Citations.]” (People v. DeRouen (1995) 38 Cal.App.4th 86, 91, disapproved on other grounds in People v. Allen (1999) 21 Cal.4th 846, 864, 866.) “‘[I]nhabited’ means currently being used for dwelling purposes, whether occupied or not.” (§ 459.) The term “inhabited dwelling house” has been given a broad, inclusive construction, and means a “‘structure where people ordinarily live and which is currently being used for dwelling purposes. [Citation.] A place is an inhabited dwelling if a person with possessory rights uses the place as sleeping quarters intending to continue doing so in the future.’ [Citation.]” (People v. Cruz (1996) 13 Cal.4th 764, 776.) It need not be the victim’s regular or primary living quarters. (People v. Fond (1999) 71 Cal.App.4th 127, 130-131.)
In addition, the defendant must enter the inhabited dwelling with the intent to commit any felony. (§§ 459, 460; People v. Reynolds (1989) 211 Cal.App.3d 382, 388-389 & fn 1.) “The statutes in some jurisdictions provide otherwise and include in their definition of burglary the situation where one enters or remains with the requisite intent. [Citations.] Section 459, by contrast, requires an entry with requisite intent.” (People v. Sparks (2002) 28 Cal.4th 71, 85, fn. 17, italics in original.)
We turn now to the definition of burglary in Utah. Defendant was convicted of burglary of a dwelling in violation of Title 76, Chapter 6, Section 202 of the Utah Code Annotated (1953) (U.C.A.). “An actor is guilty of burglary if he enters or remains unlawfully in a building or any portion of a building with intent to commit” any felony or other specified felonies including theft. (U.C.A., supra, § 76-6-202, subd. (1).) Burglary is a felony of the third degree in Utah “unless it was committed in a dwelling, in which event it is a felony of the second degree.” (U.C.A., supra, § 76-6-202, subd. (2).) A “dwelling” is defined as “a building which is usually occupied by a person lodging in the building at night, whether or not a person is actually present.” (U.C.A., supra, § 76-6-201, subd. (2).)
Utah’s second degree burglary statute “is intended to protect people while in places where they are likely to be living and sleeping overnight, as opposed to protecting property in buildings such as stores, business offices, or garages.” (State v. Cox (Utah App. 1992) 826 P.2d 656, 662.) Therefore, the term “‘usually occupied’ refers to the purpose for which the structure is used. If the structure is one in which people typically stay overnight, it fits within the definition of dwelling under the burglary statute.” (Ibid.)
B. The Record of Conviction
As explained ante, a prior felony conviction is a strike if it is either a serious felony as defined by section 1192.7, subdivision (c), or a violent felony as defined in section 667.5, subdivision (c). (§ 667, subd. (d)(1).) A prior felony conviction is also a strike if it is “[a] conviction in another jurisdiction for an offense that, if committed in California, is punishable by imprisonment in the state prison. A prior conviction of a particular felony shall include a conviction in another jurisdiction for an offense that includes all of the elements of the particular felony as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7.” (§§ 667, subd. (d)(2), 1170.12, subd. (b)(2); see People v. Laino (2004) 32 Cal.4th 878, 895.)
The trial court, rather than the jury, determines whether a prior felony conviction qualifies as a serious felony under the three strikes law. (People v. Kelii (1999) 21 Cal.4th 452, 456, 458.) The People bear the burden of proving beyond a reasonable doubt that defendant’s prior convictions were for serious felonies. (People v. Towers (2007) 150 Cal.App.4th 1273, 1277.) On appeal, the test is whether a reasonable trier of fact could have found that the People sustained its burden, and we review the record in the light most favorable to the trial court’s findings. (Ibid.)
“‘In order for a prior conviction from another jurisdiction to qualify as a strike under the Three Strikes law, it must involve the same conduct as would qualify as a strike in California.’ There is, however, no guarantee the statutory definition of the crime in the other jurisdiction will contain all the necessary elements to qualify as a predicate felony in California.” (People v. Woodell (1998) 17 Cal.4th 448, 453 (Woodell).) “Where... the mere fact that a prior conviction occurred under a specified statute does not prove the serious felony allegation, otherwise admissible evidence from the entire record of the conviction may be examined to resolve the issue. [Citations.]” (People v. Delgado (2008) 43 Cal.4th 1059, 1065 (Delgado), italics added; People v. Guerrero (1988) 44 Cal.3d 343, 355 (Guerrero).) “Just as it may do when the prior conviction was suffered in California [citation], the trier of fact may consider the entire record of the proceedings leading to imposition of judgment on the prior conviction to determine whether the offense of which the defendant was previously convicted involved conduct which satisfies all of the elements of the comparable California serious felony offense,” if such a review is not precluded by the rules of evidence or other statutory limitation. (People v. Myers (1993) 5 Cal.4th 1193, 1195-1196, 1201.) If the record does not disclose any of the facts of the offense actually committed, the court will presume the prior conviction was for the least adjudicated elements of the foreign offense as defined by statute. (Guerrero, supra, 44 Cal.3d at p. 355; People v. Rodriguez (1998) 17 Cal.4th 253, 261-262.)
“A common means of proving the fact and nature of a prior conviction is to introduce certified documents from the record of the prior court proceeding and commitment to prison, including the abstract of judgment describing the prior offense. [Citations.]” (Delgado, supra, 43 Cal.4th at p. 1066.) “Other cases have held proper for consideration to prove a prior conviction a variety of items, including a change of plea form executed by the defendant in the previous conviction [citation], the charging documents and no contest plea reflected in a minute order [citation], a complaint and [plea] forms admissions [citation], a reporter’s transcript of the defendant’s guilty plea together with the information [citation], a probation report [citation], and a preliminary hearing transcript [citation].” (People v. Henley (1999) 72 Cal.App.4th 555, 560; see also Guerrero, supra, 44 Cal.3d at pp. 345, 356 [facts in the accusatory pleading to which defendant entered a plea]; People v. Harrell (1989) 207 Cal.App.3d 1439, 1444 [facts alleged in information to which defendant entered a plea]; People v. Smith (1988) 206 Cal.App.3d 340, 345.) A recitation of the factual basis for a plea in a prior conviction may also be relied on, even though such findings are not constitutionally required. (People v. Smith, supra, 206 Cal.App.3d at pp. 345-346.)
C. The Utah Documentary Evidence
We now turn to the certified documentary evidence introduced by the prosecution and relied upon by the trial court to find defendant’s three prior burglary convictions in Utah would be serious felonies in California.
1. The 1981 conviction
In Salt Lake Superior Court case No. CR81-1233, an information was filed against defendant on September 16, 1981. The information was signed by Detective Robert Gillies of the Salt Lake City Police Department who “under oath state[d] on information and belief that the defendant[] committed” the following offenses: count I, a “second degree felony,” at “261 South 800 East, on or about August 17, 1981, in violation of Title 76, Chapter 6, Section 202, Utah Code Annotated, 1953 as amended, in that the defendant... entered or remained unlawfully in the dwelling of Richard Madsen with the intent to commit a theft.” The information was signed by a circuit judge, who swore the information was “subscribed and sworn to before me.” (Italics added.)
The information included a “probable cause statement,” made under oath by Detective Gillies (the “affiant”), which stated that Gillies based the information upon the following facts.
“Personal interview with Richard Madsen who told your affiant that on August 17, 1981 during the daytime hours, someone broke into his home at 261 South 800 East and removed numerous items from his home without his permission. Some of the items taken were a video recorder, stereo receiver, two Linear speakers, army duffle bag, tape player, Craig cassette tape player, Koss head phones, and various knives, said property having a value of approximately $1500.” (Italics added.)
Detective Gillies further swore in the probable cause statement that he searched defendant’s home with defendant’s probation officer, defendant lived within one block of Madsen’s residence, Gillies found many of the missing items in defendant’s apartment, and Madsen identified some of the items as his property. Defendant was asked about these items and he said someone left them at his residence.
A “Judgment and Commitment” order, filed on December 14, 1981, stated that defendant appeared in court on December 2, 1981, after pleading no contest to “Burglary, a second degree felony, as charged in count I of the information,” and he was sentenced to 1 to 15 years for “Burglary, a second degree felony.”
2. The 1984 conviction
On January 13, 1984, an information was filed against defendant in case No. CR84-104, by Officer Terry Steed of the Murray Police Department in Utah. Officer Steed swore “under oath... on information and belief that the defendant[] committed” the following offense: “Burglary, a Second Degree Felony, at 5235 South 700 West, in Salt Lake County... on or about January 10, 1984, in violation of Title 76, Chapter 6, Section 202, and Title 76, Chapter 2, Section 202, Utah Code Annotated 1953, as amended,” in that defendant “entered or remained unlawfully in the dwelling of Rena Valledioed with the intent to commit a theft.”
The information also included Officer Steed’s sworn “probable cause statement,” that he personally interviewed Rena Valledioed, “who stated that she was away from her dwelling approximately 5235 South 700 West on January 10, 1984 until 12:30 p.m. and that when she returned, she found that her door handle had been forced off and found [defendant] inside her home and that [defendant] left carrying property.” (Italics added.) Officer Steed signed the information and probable cause statement as the “affiant.” A circuit judge also signed the information and stated it was “subscribed and sworn to before me...”
A minute order for January 27, 1984, stated that defendant pleaded guilty in case No. CR84-104 to second degree burglary and he was sentenced to 1 to 15 years in state prison. An “Affidavit of Defendant” was also filed in which defendant declared under oath that he pleaded guilty to second degree felony burglary, and that he “entered or remained unlawfully in the dwelling of another with intent to commit a theft. On 1/10/84, defendant entered the home of Rena Valledioed with intent to commit a theft.” (Italics added.)
A “Judgment and Commitment” order, filed on January 31, 1984, stated defendant was sentenced to prison for 1 to 15 years after being found guilty of “Burglary, a second degree felony.”
3. The 1996 conviction
On April 24, 1996, an information was filed in case No. 961901032, in which Officer M. Chidester of Salt Lake County Sheriff’s Department swore “under oath” and “on information and belief,” that defendant committed count I, “BURGLARY, a Second Degree Felony, at 4344 Muierfield #21, in Salt Lake County... on or about April 20, 1996, in violation of Title 76, Chapter 6, Section 202, Utah Code Annotated 1953, as amended” with a codefendant, his son; and that both defendants “entered or remained unlawfully in the dwelling of Elna Phelps, Stacey Jorgensen, and Collie Hanks with the intent to commit a theft.”
The second amended information filed in the instant case contains a typographical error and states the case number for defendant’s 1996 burglary conviction in Utah is “96190132.” All Utah court documents state the case number for the 1996 burglary conviction is “961901032.” (Italics added.) Defendant does not rely on this typographical error in his substantial evidence challenge and concedes the relevant documents address his 1996 burglary conviction.
The information contained Officer Chidester’s sworn “probable cause statement” that he “bases this Information upon the following...”
“1. The statement of Elna Phelps, Stacey Jorgensen, and Collie Hanks that on April 20, 1996 their apartment, #21 at the Turnberry Apartments, was broken into and several items worth over $1,100.00 were stolen including a VCR, a stereo and a television. Those items found by the officer’s in the defendants’ car were identified to one of the three victims by each of the victims.
“2. The statements of Edward Hannan, Martha Hannan, and Kelee Moon who identified both defendants at a showup as the persons they saw knock on apartment #21 at the Turnberry Apartments and then who they saw carry a television, VCR and stereo and put them into a gold Pontiac in which both defendants were seen driving away.
“3. The statement of Deputy Blanton that after being called on a burglary charge and being told the suspects had left in a gold Pontiac he saw the car, gave chase and the car sped up and fled.
“4. The statement of Sgt. Chard who was involved at the end of the described chase identifies [defendant] as the driver of the gold Pontiac.” (Italics added.)
The information was signed by the officer and a magistrate judge who declared it was “[s]ubscribed and sworn to before me...”
On June 24, 1996, defendant signed a “Statement of Defendant and Certificate of Counsel and Order” in case No. 961901032 and declared that he pleaded guilty to second degree burglary, and that “[o]n April 20, 1996, at 4344 Muierfield #21, [defendant] entered the apartment of Elna Phelps with the intent to commit a theft.” (Italics added.) A minute order states that on June 24, 1996, defendant pleaded guilty in case No. 961901032 to count 1, “BURGLARY OF A DWELLING, 2nd Degree,” and counts 2 and 3 were dismissed.
An order entitled “Judgment, Sentence” in case No. 961901032 FS filed on September 11, 1996, states defendant pleaded guilty to “burglary of a dwelling,” a felony of the “2nd degree” on September 9, 1996, and he was sentenced to 1 to 15 years.
D. Analysis
Defendant contends there is insufficient evidence to support the trial court’s findings that his three prior burglary convictions in Utah constituted burglary of dwellings that were “inhabited” as required for first degree burglary in California. Defendant further contends that under the least adjudicated elements for his 1981 burglary conviction, he could have committed that offense by “entering or remaining” in a building, whereas a burglary in California only can be committed by entering an inhabited dwelling with the requisite intent.
As explained ante, we review “otherwise admissible evidence from the entire record of the conviction” to determine if defendant’s Utah convictions are serious felonies in California. (Delgado, supra, 43 Cal.4th at p. 1065; Guerrero, supra, 44 Cal.3d at p. 355; Myers, supra, 5 Cal.4th at pp. 1195-1196, 1201.) The entire record of defendant’s Utah convictions refutes his arguments. In the 1981 case, defendant pleaded no contest to a second degree felony, burglary, as charged in the information. The information and probable cause statement contained therein stated defendant was charged with second degree burglary of Richard Madsen’s house; that Madsen reported someone “broke into his home... and removed items from his home without his permission.” (Italics added.) Defendant thus pleaded guilty to entering the dwelling house of another and stealing that person’s personal property, such that his conduct constituted burglary of an inhabited dwelling and a serious felony in California.
Similarly, defendant’s 1984 conviction in Utah was based upon his guilty plea to second degree burglary as charged in the information. The information and probable cause statement contained therein stated that Rena Valledioed reported someone broke into her dwelling, she discovered defendant inside, and defendant left carrying property. Defendant signed an affidavit as part of the plea proceedings and declared under oath that he “entered the home of Rena Valledioed with intent to commit a theft.” (Italics added.) As with the 1981 conviction, defendant pleaded guilty to entering the inhabited dwelling house of another and stealing her property, and such conduct constitutes a serious felony in California.
Finally, defendant’s 1996 conviction in Utah was based on his guilty plea to a second degree felony, burglary of a dwelling, as charged in the information. The information and probable cause statement therein stated that an apartment was broken into, Elna Phelps and two other people lived in the apartment, their property was stolen from the apartment, and defendant was seen carrying away property from the apartment. As part of his plea, defendant signed a statement that he “entered the apartment of Elna Phelps with the intent to commit a theft.” (Italics added.) Again, defendant pleaded guilty to entering the inhabited dwelling house of another and taking that person’s property, and such conduct constitutes a serious felony in California.
Defendant acknowledges the “probable cause statements” contained within the three Utah informations present “a factual scenario suggesting” the dwellings were inhabited at the time of the burglary. However, he argues the probable cause statements are not part of the entire record of the Utah convictions, that only the least adjudicated elements of the Utah burglary statute may be considered, he could have been convicted of burglary based upon “entering and remaining” in any building, and such conduct would not constitute serious felonies in California.
At the bifurcating hearing on the truth of the strike allegations, defense counsel conceded defendant’s 1996 burglary conviction in Utah was a serious felony. On appeal, defendant concedes there is sufficient evidence to support the trial court’s finding that he “entered” a dwelling for his 1984 Utah burglary conviction, but apparently contends there is no evidence the dwelling in the 1984 case was inhabited.
A review of Utah’s statutory definitions of an information and probable cause statement refute this argument. “Unless otherwise provided, all criminal prosecutions... shall be commenced by the filing of an information or the return of an indictment.” (Utah R. Crim. P., rule 5(a).) The information shall be “sworn to by a person having reason to believe the offense has been committed.” (Utah R. Crim. P., rule 4(a).) In the usual case, an information is authorized and prepared by the district attorney’s office after a screening process, and the investigating officer presents the information to the magistrate and subscribes and swears to the information under oath. (State ex rel. Cannon v. Leary 646 P.2d 727, 730 (Utah 1982).)
At the time defendant entered his pleas in Utah in 1981 and 1984, section 77-35-4(b) of the Utah Code Annotated stated that an “information may contain or be accompanied by a statement of facts sufficient to make out probable cause to sustain the offense charged where appropriate.” (See State v. Schreuder (Utah 1985) 712 P.2d 264, 272; State v. Strand (Utah 1986) 720 P.2d 425, 427, fn. 5.) This rule was repealed in 1990, but the legal principle is still codified as rule 4(b) of the Utah Rules of Criminal Procedure. (Tillman v. Cook (Utah 1993) 855 P.2d 211, 215, fn. 6; State v. Strand, supra, 720 P.2d 425 at p. 427, fn. 5; see U.C.A., supra, § 77-35-1 and notes following.) Rule 4(b) states:
“An indictment or information shall charge the offense for which the defendant is being prosecuted by using the name given to the offense by common law or by statute or by stating in concise terms the definition of the offense sufficient to give the defendant notice of the charge. An information may contain or be accompanied by a statement of facts sufficient to make out probable cause to sustain the offense charged where appropriate. Such things as time, place, means, intent, manner, value and ownership need not be alleged unless necessary to charge the offense....” (Utah R. Crim. P., rule 4(b), italics added.)
“The probable cause statement... should be considered as part of the notice given” to the defendant of the charges against him and to allow him to prepare a defense. (State v. Bernards (Utah App. 2007) 166 P.3d 626, 630; State v. Aase (Utah App. 1988) 762 P.2d 1113, 1117; State v. Strand, supra, 720 P.2d 425 at pp. 427-428; State v. Martinez (Utah App. 1995) 896 P.2d 38, 41-42; State v. Allen (Utah 1992) 839 P.2d 291, 298.) When the information contains the probable cause statement, the contents of that statement are therefore part of the information. (State v. Schreuder, supra, 712 P.2d at p. 272; State v. Mitchell (Utah App. 1991) 824 P.2d 469, 471.) When a defendant enters a plea to charges described in the information, the probable cause statement within the information describes the factual basis for the charge. (State v. Hoff (Utah 1991) 814 P.2d 1119, 1125)
It is clear that the Utah criminal code and rules consider the probable cause statement as part of the information and the factual basis to which a defendant enters a plea. California defines the “entire record of conviction” to include the information filed against the defendant, and to which the defendant entered a plea which resulted in the prior conviction, which may be reviewed to determine if defendant’s prior conviction was for a serious felony. (See, e.g., People v. Moenius (1998) 60 Cal.App.4th 820, 824-827; People v. Harrell, supra, 207 Cal.App.3d 1439, 1444-1446; People v. Henley, supra, 72 Cal.App.4th at p. 560; People v. Smith, supra, 206 Cal.App.3d at p. 345; People v. Hayes (1992) 6 Cal.App.4th 616, 622; People v. Skeirik (1991) 229 Cal.App.3d 444, 462-463.)
We thus conclude the trial court herein properly relied upon the probable cause statements contained within the informations in defendant’s three Utah cases to find that his prior convictions for second degree burglary in Utah constituted burglary of an inhabited dwelling in California, in that defendant entered dwellings inhabited by others and stole the inhabitants’ possessions. Defendant’s prior felony convictions in Utah are serious felonies and strikes.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Cornell, Acting P.J. Hill, J.