Opinion
Review Granted May 21, 1987.
Previously published at 190 Cal.App.3d 169
Frank O. Bell, Jr., State Public Defender, Nancy Ann Stoner, Deputy State Public Defender, for defendant and appellant.
John K. Van de Kamp, Atty. Gen., Carol Wendelin Pollack, Supervising Deputy Atty. Gen., Marc E. Turchin, Deputy Atty. Gen., for plaintiff and respondent.
Assigned by the Chairperson of the Judicial Council.
Defendant and appellant, Bruce Clyde Tyrrell (Tyrrell), appeals the judgment of conviction following a jury trial for first degree burglary in violation of section 459 of the Penal Code and a separate court trial wherein three prior convictions were found true.
Tyrrell contends error on the following grounds: (1) the seizure of sealed property after the booking process was completed was illegal, and the prejudicial use of the evidence and statements requires reversal; (2) the five year enhancement for the first degree burglary conviction must be stricken since the prosecution did not properly establish the necessary element of entry of a residence; and (3) the case should be remanded for resentencing because the trial court relied on improper and invalid reasons for imposing the upper term.
From our review of the record we modify the judgment to strike the finding that Tyrrell suffered a prior residential burglary within the meaning of Penal Code sections 667 and 1192.7, subdivision (c), and the additional term imposed based on that finding. As modified, we affirm.
PROCEDURAL BACKGROUND
In an information filed November 1, 1984, Tyrrell was charged with one count of residential burglary that occurred on October 2, 1984. An amendment to the information filed the same date alleged that he had been previously convicted of first degree burglary on April 28, 1976, and robbery on December 22, 1981, both serious felonies within the meaning of Penal Code section 667, subdivision (a). A third enhancement alleged that he had served a prior prison term within the meaning of A motion to suppress evidence pursuant to section 1538.5 was heard and denied on July 22, 1985. Jury trial commenced the following day, and a verdict of guilty was rendered thereafter. The allegations of the prior convictions were found true in a separate court trial. Probation was denied, and Tyrrell was sentenced to state prison for seventeen years. The court imposed the upper base term of six years for the burglary, five years consecutive for each serious felony prior and an additional one year for the prior prison term.
All code section references are to the Penal Code.
FACTUAL BACKGROUND
On October 2, 1984, Walter Jackson left his residence in Pico Rivera at 5 a.m. His wife, Felicitas Jackson left with their two children at 8 a.m., after securing and locking the house. She recalled leaving a money clip, two ankle chains, and a gold ring on top of a Bible on a nightstand. The Jacksons also owned a video cassette recorder that was placed on the television set in the living room. No one had permission to enter their residence.
When Mrs. Jackson returned that night at 10:30 p.m., she found a window broken, the house in disarray, and the video cassette recorder and jewelry missing. These items were later recovered from the sheriff's station and returned to the Jacksons.
Deputy Sheriff James Cabalitan responded to the Jackson residence at 5:30 p.m. the same evening to assist Deputy Richard Orosco in a burglary investigation. Cabalitan arrested Tyrrell as he was climbing out of a window. In securing the residence Cabalitan noticed on the couch a video recorder with its electric cord wrapped around it. Orosco booked the video cassette recorder into evidence. He also performed a booking search on Tyrrell at the station and booked two chains, a ring and a money clip found in appellant's right pants pocket.
The next day Detective Larry Blackwell interviewed Tyrrell and asked him about the incident. Appellant responded, "It wasn't nighttime. It wasn't even dark, so it's not first-degree burglary." When confronted with the jewelry, he stated, "They got me dead bang. I don't got--I don't have nothing else to say."
Ella Rose Martin testified for Tyrrell that on October 2, 1984, he consumed 15 bottles of beer and appeared to be intoxicated by the time he finished the last bottle around 4 o'clock that afternoon. The two of them went to run an errand, but Tyrrell in an intoxicated and angry state left Martin in her car around 5:15 p.m. and said he would meet her back at the house.
The People called three other witnesses in rebuttal to testify that Tyrrell did not appear to be under the influence of alcohol that day.
CONTENTIONS
1. The retrieval of the stolen jewelry from Tyrrell's property envelope did not constitute an unlawful search and seizure.
a. Facts adduced at the motion to suppress
At the suppression hearing Deputy Orosco testified that he placed two gold chains, a money clip and a ring found in Tyrrell's pants pocket during the booking process in a two inch by three inch manila envelope. This small envelope was placed with a birth certificate and the booking slip in a clear plastic bag which was sealed and given to the jailer, who secured it inside a locker. The jewelry items were listed not only on the outside of the sealed manila envelope, but also on the booking slip.
Deputy Herbert Fell, assigned to the complaint desk, contacted Felicitas Jackson on October 2, 1984, at 10:40 p.m. for followup information. She informed him that two ankle chains and a small ring were missing, however, she was still in the process of making a full inventory. After checking the evidence locker, Deputy Fell went to the property locker where he found the ankle chains, money clip and ring. He removed these items and booked them into the evidence locker. Fell recontacted Jackson b. Discussion
Tyrrell asserts as error the introduction into evidence of the jewelry as well as his statement, "They got me dead bang. I don't got--I don't have nothing else to say." else." His argument centers on the completed booking search rationale in People v. Smith (1980) 103 Cal.App.3d 840, 163 Cal.Rptr. 322. This reliance on Smith is misplaced because Smith involved the search of his mother's property while she was in custody. The investigating officer on pure speculation and without probable cause seized the mother's purse and found within a wallet that had Smith's current address as well as keys to a stolen vehicle that was the subject of their investigation. That court concluded that "since the officer's purpose in inspecting [the arrestee's] purse and wallet a second time was to look for at least one item not previously noted, ... and items whose evidentiary value had not been previously appreciated, ... the inspection involved an intrusion into whatever vestige of privacy remained to [the arrestee] and thus did constitute a search." (People v. Smith, supra, at p. 845, 163 Cal.Rptr. 322.)
The Smith court distinguished its holding from that in United States v. Edwards (1974) 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771, a case respondent relies on. Edwards, arrested for burglary, was jailed in his own clothes because no jail clothes were available. During the course of the investigation it was learned that paint chips from the point of entry might be on Edwards' clothing. This clothing was seized, examined, and found to contain matching paint chips which were later admitted into evidence. The Edwards majority found that the booking process had not ended by the time he was placed in his cell. (Edwards, supra, at p. 804, 94 S.Ct. at p. 1237.) In contrast, the booking process had ended in Smith.
Based on this distinction between a booking process that was in progress and one that was completed, Tyrrell asserts that any subsequent seizure must be authorized by a search warrant. This analysis, however, does not recognize the factual distinction between the present case and Smith. In this case there was no vestige of privacy in two chains, a ring and a money clip that had been viewed and inventoried with the contents fully described on not only the manila envelope in which they were placed, but also on a separate booking slip.
If the booking officer had chosen to place such items in a clear envelope, the jewelry would have been in plain sight under the holding of People v. Superior Court (Gunn) (1980) 112 Cal.App.3d 970, 169 Cal.Rptr. 559. Gunn, under investigation for a homicide, was in custody on an unrelated charge. Detectives examined his property and found a ring in a transparent plastic bag. The ring was seized and later identified as belonging to the decedent. The court distinguished Smith by holding that the "vestige of privacy approach ... has no applicability to a ring which was in plain sight when seized, and which was stored, not in a purse, but in a bag provided by the jailer for convenience and safekeeping while in the jailer's custody." (People v. Superior Court (Gunn), supra, 112 Cal.App.3d 970, 978, 169 Cal.Rptr. 559.) The court further noted that when the ring was seized there was probable cause to arrest Gunn for the homicide. (Id., at p. 976, 169 Cal.Rptr. 559.)
In People v. Bradley (1981) 115 Cal.App.3d 744, 171 Cal.Rptr. 487, the plain sight doctrine was also used to uphold the seizure of a ring found in the arrestee's booked property. This distinctive ring was positively identified by the victim as the one worn by the robber. The Bradley court distinguished Smith by concluding that:
"[A] ring worn on defendant's finger open to plain view to the victim during the robbery and properly within the custody of the sheriff after booking hardly falls within the same category. It did not have, nor can it acquire after booking, a 'vestige of Tyrrell's assertion that the jewelry after proper inventory became constitutionally protected because of its enclosure in an opaque rather than transparent bag fails. To hold otherwise would result in a booking officer determining what items would be in plain view and what items would retain a vestige of privacy. As Edwards held, "Indeed, it is difficult to perceive what is unreasonable about the police's examining and holding as evidence those personal effects of the accused that they already have in their custody as the result of a lawful arrest." (United States v. Edwards, supra, 415 U.S. 800, 806, 94 S.Ct. 1234, 1238.)
PH 2. The five year enhancement for residential burglary is stricken.
Tyrrell asserts that residential burglary was improperly established when the trial court went behind the abstract of judgment and reviewed other documents. The court below considered the superior court file (Exh. 10) as the judgment of conviction, and relied on the abstract of judgment, the information, and a transcript of the actual plea in determining the truth of this enhancement.
The judgment reads that the defendant pled guilty to the crime of "BURGLARY IN THE FIRST DEGREE, in Violation of section 459, Penal Code, a Felony, as Charged in the Information...." (Exh. 10.)
The information states that "... Bruce Clyde Tyrrell on or about the 2nd day of March 1976, at and in the County of Los Angeles, State of California, did willfully enter the residence and building occupied by Kathleen M. Head, in the City of Long Beach, County and State aforesaid, with the intent then and there and therein unlawfully and feloniously to commit a felony and theft." (Exh. 10.)
The transcript of the plea indicates the following occurred:
In light of People v. Alfaro (1986) 42 Cal.3d 627, 230 Cal.Rptr. 129, 724 P.2d 1154, we strike this enhancement.
Section 667 provides for a five year enhanced sentence for any person convicted of a serious felony who had previously been convicted of a serious felony as defined in section 1192.7, subdivision (c). One of the serious felonies in this section, burglary of a residence, has created problems because "[it] is not a specific crime; depending upon the date and degree of the burglary, a conviction may not demonstrate that the defendant entered a residence." (People v. Alfaro, supra, 42 Cal.3d 627, 631, 230 Cal.Rptr. 129, 724 P.2d 1154.)
In 1976, first degree burglary was defined in section 460 as follows:
"Every burglary of an inhabited dwelling house, trailer coach as defined by the Vehicle Code, or building committed in the nighttime, and every burglary, whether in the daytime or nighttime, committed by a person armed with a deadly weapon, or The California Supreme Court in People v. Jackson (1985) 37 Cal.3d 826, 834, 210 Cal.Rptr. 623, 694 P.2d 736, reviewed its holding in People v. Crowson (1983) 33 Cal.3d 623, 190 Cal.Rptr. 165, 660 P.2d 389 and held that (1) proof of a prior conviction establishes only the least adjudicated elements of the crime, even if the charging pleading contained additional allegations; and (2) the prosecution cannot go behind the record of conviction and relitigate the circumstances of the offense to prove some fact which was not a necessary element of the crime.
The question in the first instance is what are the least adjudicated elements of the offense when the offense can be committed a number of ways; the question in the second instance is what can be considered in proving the prior conviction without going behind the record of conviction. These questions have created conflicts in decisions rendered by the appellate courts until our Supreme Court resolved the issue in People v. Alfaro, supra, 42 Cal.3d 627, 230 Cal.Rptr. 129, 724 P.2d 1154.
In Alfaro the disputed prior conviction, a 1974 burglary of a residence, was found true after the court considered the information which alleged that "he entered the house of Shelby Gilbert, located at 111 Bernarda Court, Oxnard, California, with intent to commit theft." The court also reviewed a 1974 minute order that showed Alfaro pled guilty to burglary, "a violation of section 459 of the Penal Code as set forth in the Information." (People v. Alfaro, supra, 42 Cal.3d 627, 630-631, 230 Cal.Rptr. 129, 724 P.2d 1154.)
In Alfaro the judgment was reversed to the extent it upheld the five year enhancement. The court ruled that entry into a residence would have to be an element necessarily adjudicated for the prior to be a valid residential prior. It further held that "proof of the prior conviction is limited to matters which fall within the doctrine of collateral estoppel and thus cannot be controverted. Proof is simple and conclusive." (People v. Alfaro, supra, 42 Cal.3d at p. 634, 230 Cal.Rptr. 129, 724 P.2d 1154.) The record of the conviction refers to the judgment and matters necessarily adjudicated therein. It does not include the pleadings and other documents such as probation reports and preliminary hearing transcripts. (Id., at p. 636, 230 Cal.Rptr. 129, 724 P.2d 1154.) The court disapproved language contrary to these views in People v. Longinetti (1985) 164 Cal.App.3d 704, 210 Cal.Rptr. 729; People v. Crane (1985) 163 Cal.App.3d 667, 209 Cal.Rptr. 585; and People v. Dean (1984) 161 Cal.App.3d 493, 207 Cal.Rptr. 688. (See Alfaro, supra, 42 Cal.3d at p. 636, fn. 8, 230 Cal.Rptr. 129, 724 P.2d 1154.) The Alfaro court said that the Longinetti case was the strongest one for going beyond the Crowson analysis. In Longinetti the residential allegation of the complaint was incorporated by reference. Nevertheless Alfaro held that "even in that case one cannot place confidence in a finding of 'guilty as charged' when the charge included an allegation of residency the prosecution had no need to prove, defendant no incentive to contest, and the trier of fact no duty to decide." (Alfaro, supra, at p. 635, 230 Cal.Rptr. 129, 724 P.2d 1154.)
In accord with Alfaro we hold that entry into a residence was not an element necessarily adjudicated by Tyrrell's guilty plea and that the trial court improperly considered documents outside that judgment. This judgment is modified to strike the finding that Tyrrell suffered a prior residential burglary conviction and to strike the additional term imposed based on that finding.
3. The court did not err in imposing the upper base term.
The trial court sentenced Tyrrell to the upper term of six years based on the following circumstances in aggravation:
" [t]hat the victim in this case was particularly vulnerable;
" that the planning, sophistication, or professionalism with which the crime was carried out indicates premeditation; " that the defendant was engaged in a pattern of conduct which indicates a serious danger to society;
" that the defendant's prior performance on probation and parole was unsatisfactory;
" that the crime involved an attempt or taking of great monetary value, whether or not charged or chargeable as an enhancement under Section 12022.6."
The above circumstances were weighed against one circumstance in mitigation: "that the defendant suffers from a mental or physical condition that significantly reduce[s] his capability [sic ] for the crime...." The court held that the circumstances in aggravation clearly outweighed the circumstance in mitigation and justified the imposition of the upper term.
Tyrrell asserts that circumstances 1, 2 and 5, as set forth above were improperly imposed and mandate sentence reconsideration. His arguments that the Jacksons were not particularly vulnerable, that the facts did not indicate premeditation, and that the taking or attempted taking could not be defined as one of "great monetary value" have merit.
However, remand is required only where it is reasonably probable a different result would have occurred had the improper factor not been considered. (People v. Edwards (1981) 117 Cal.App.3d 436, 446, 172 Cal.Rptr. 652.) In examining the reasonable probability of a different result without the offending factor, the appellate court should engage in a "quantitive and qualitative analysis" of the remaining factors. (People v. Lambeth (1980) 112 Cal.App.3d 495, 501, 169 Cal.Rptr. 193.)
In a quantitive analysis after deleting the three questioned circumstances, one factor in mitigation would be weighed against two in aggravation. One aggravating circumstance standing alone has justified imposition of the upper base term. (People v. Burney (1981) 115 Cal.App.3d 497, 505, 171 Cal.Rptr. 329; People v. Covino (1980) 100 Cal.App.3d 660, 670, 161 Cal.Rptr. 155.) However, this court cannot simply tally up the circumstances, especially in a situation where the trial court may have placed greater weight on the one mitigating factor.
One must then turn to a qualitative analysis for guidance. The court's intent in imposing the upper base term was clear. "The Court feels, Mr. Tyrrell, that you are a threat to the community, and the Court feels that it must fulfill its obligation and responsibility in this regard and place you in custody for the maximum period possible." Since the court emphasized this particular circumstance in aggravation and appeared to give it additional weight, it is not reasonably probable a different sentence would have been imposed in light of the court's intent to impose the "maximum period possible."
DISPOSITION
The judgment is modified to strike the finding that Tyrrell had suffered a prior residential burglary within the meaning of sections 667 and 1192.7, subdivision (c), and to strike the additional term imposed based on that finding. As modified, we affirm.
KLEIN, P.J., and DANIELSON, J., concur.
"Mr. MacKenzie [the prosecutor]: Mr. Tyrrell, you're presently charged in Information A-016579 with the crime of burglary in violation of Penal Code section 459.
"In the Information, it is alleged that on March the 2nd, 1976, in the county of Los Angeles, you entered the residence of Kathleen Head in the City of Long Beach with the intent to commit a theft.
"Do you understand what you're charged with in the Information.
"The Defendant: Yes, Sir.
"Mr. MacKenzie: Mr. Tyrrell, in the Information you're charged with the crime of first degree burglary. The crime of first degree burglary consists of the following elements: entering a residence in the nighttime with the intent to commit a theft and that's what you're charged with in this case.
"Do you understand the charge and the crime you're charged with?
"The Defendant: Yes, sir." (Transcript of Plea, pp. 3-4, Exh 10.)
[After the advisement and waiver of rights, the prosecutor continued:]
"Mr. MacKenzie: Mr. Tyrrell, at this time how do you plead to the charge of first degree burglary in the Information A016579?
"The Defendant: Guilty.
"Mr. MacKenzie: And Mr. Tyrrell, is that charge true?
"The Defendant: Yes.
"Mr. MacKenzie: Mr. Tyrrell, is it true as alleged in the Information that on March the 2nd, 1976, in the City of Long Beach, you entered a residence and at the time you entered the residence, you intended to commit a theft inside the residence?
"The Defendant: Yes, sir." (Transcript of Plea, pp 8-9; Exh. 10.)