Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC957560.
Premo, J.
Defendant Dwayne Robertson Burrell pleaded guilty to first degree burglary (inhabited dwelling house). He then admitted having suffered two prior convictions for purposes of the Three Strikes law (two first degree, serious-felony burglaries--No. CC763261 and No. CC634735), one prior serious-felony conviction for purposes of a five-year enhancement (one of the strike priors--No. CC634735), and one prior prison term served (marijuana sales) for purposes of a one-year sentence enhancement. He submitted for court trial (1) a violent-felony allegation (whether a person who was not an accomplice was present in the residence at the time of the burglary for purposes of a three-year enhancement for each prior-separate-prison-violent felony (Pen. Code, § 667.5, subd. (c)(21))), and (2) a prior serious-felony allegation (whether strike prior No. CC763261, as a serious felony, qualified for a second five-year enhancement because it was brought and tried separately from No. CC634735). The trial court found the violent-felony allegation true and the serious-felony allegation not true. It later denied defendant’s Romero motion to strike one of the strike priors. It then sentenced defendant to 25 years to life for the burglary conviction consecutive to five years for the serious-felony prior. On appeal, defendant contends that the trial court erred by (1) finding the violent-felony allegation true, and (2) denying his Romero motion. In a separate petition for writ of habeas corpus, which we ordered to be considered with the appeal, defendant raises a claim that he received ineffective assistance of counsel because his counsel failed to present evidence of his character and prospects in support of the Romero motion. We disagree with defendant’s appellate contentions. We will modify the judgment as to sentencing and affirm the judgment as modified. And we will deny the habeas corpus petition.
Further unspecified statutory references are to the Penal Code.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (motion to dismiss prior convictions) (Romero).
The trial court announced that “I will not add six years.” We presume that the trial court was referring to not adding two three-year enhancements for the violent-felony finding. The abstract is consistent in showing no sentence for the violent-felony finding. The trial court also announced that “The two year prison priors will be stayed pursuant to People versus Jones.” We presume that the trial court was referring to the marijuana prison prior that was alleged and admitted by defendant and burglary prior No. CC634735 that was alleged as a prison prior but not admitted by defendant as a prison prior. The abstract is consistent in showing that two section 667.5, subdivision (b), one-year enhancements were stayed. We will address issues arising from the sentencing after addressing defendant’s contentions.
BACKGROUND.
The parties submitted the matter of the violent-felony allegation on the transcript of the preliminary hearing. The transcript relates the following.
Timothy Hill lived with eight other Santa Clara University students in a six-bedroom home on Lafayette Way in Santa Clara. The students knew each other and signed the same lease. Five students lived upstairs in two rooms; two students lived downstairs in a room that was accessible only from the backyard; within that room was a smaller room with a kitchenette; one student lived in a room that connected the main house to the backyard; and Brian Elser lived in a room accessible only from the backyard via a sliding glass door, though the room had a blocked-off door to the main house. The backyard curves around the house, which has a garage and a small alleyway between the house and garage.
One morning when Elser was attending classes, Hill and two residents were in the house. Hill walked through the room connecting the house and backyard into the backyard. He then saw defendant standing inside Elser’s doorway. He confronted defendant. Defendant shoved Hill to the ground and ran away. The police later apprehended defendant in possession of Elser’s laptop computer and other property. Elser had left his door closed but unlocked.
The trial court reasoned as follows.
“I am satisfied from the record that this is a house that was used by a number of students, that all of the living areas were areas in common. The only difference in this case is that each of the bedrooms had outside entrances, not inside entrances. [¶] The purpose of the hot prowl section, if you read the legislative intent, was to avoid the probability of possibility that there will be a confrontation between people inside the house and someone committing a residential burglary. [¶] And in this case--I think I noted this at the time that counsel were arguing it--there’s no evidence that these are walls that can’t be heard from that if someone were in part of the house and heard someone in one of the bedrooms--everybody in the house had access to the bedrooms. Everybody knows where the access is. It just happens that the access to this bedroom is through the back of the house, if you go outside and go in. But I don’t think that defeats the hot prowl. So I’m going to uphold the hot prowl allegation.”
VIOLENT-FELONY (HOT-PROWL) ALLEGATION
For purposes of enhancement of prison terms for new offenses because of prior prison terms, a violent felony includes “Any burglary of the first degree... 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).)
Defendant argues that the residence in this case is Elser’s room and, since no one but defendant was in the room during the burglary, the elements of the enhancement were not met. He relies on People v. O’Keefe (1990) 222 Cal.App.3d 517 (O’Keefe).
Ordinarily, “where a burglar enters several rooms in a single structure, each with felonious intent, and steals something from each, ... he or she cannot be charged with multiple burglaries and punished separately for each room burgled unless each room constituted a separate, individual dwelling place within the meaning of sections 459 and 460.” (People v. Thomas (1991) 235 Cal.App.3d 899, 906, fn. 2; see People v. Richardson (2004) 117 Cal.App.4th 570, 575 [burglary of a two-bedroom apartment occupied by two unrelated and nonfamily roommates, who had no locks on their doors, was a single family residence for which the defendant could be convicted of only one burglary].)
The ordinary rule does not apply where a perpetrator enters a separate dwelling space that poses a new and separate danger to each of the occupants upon entry into each dwelling. (People v. Richardson, supra, 117 Cal.App.4th at p. 574.) Hence, entry into various private rooms within a public or commercial building can constitute separate burglaries (see, e.g., People v. Elsey (2000) 81 Cal.App.4th 948, 962 [entry into separate locked school classrooms]; People v. Church (1989) 215 Cal.App.3d 1151 [entry into separately leased and locked offices in an office building], disapproved on other grounds in People v. Bouzas (1991) 53 Cal.3d 467, 477-480), as can entry into separate private rooms within a multiunit lodging facility (see, e.g., O’Keefe, supra, 222 Cal.App.3d at p. 522 [entry into separate student dormitory rooms]; People v. Fleetwood (1985) 171 Cal.App.3d 982, 988 [entry into motel room]; People v. Thomas, supra, 235 Cal.App.3d at p. 907 [entry from garage of single family residence into a locked kitchen]; People v. Wilson (1989) 208 Cal.App.3d 611, 615 [entry from inside a home into a rented and locked bedroom]).
In O’Keefe, the defendant entered a women’s dormitory building during the holiday break when the dormitory was closed. He took photographs hanging on the walls in several rooms. When prosecuted for multiple counts of burglary for entering the individual rooms, he claimed that dormitory rooms, which share kitchen and bathroom facilities, are not separate dwellings within the meaning of the burglary statute and are analogous to a single family residence. The court rejected this contention.
First, it observed, that a student dormitory is “analogous to a hotel or apartment complex” and not to a single-family home. (O’Keefe, supra, 222 Cal.App.3d at p. 521.) It noted that “[i]n many apartment and hotel complexes, facilities are shared but separate burglaries of the individual rooms may still occur” (ibid.), and it cited decisions finding the entry into a bedroom of a tenant of a home to be burglary, and the entry into separate rooms in a business complex to constitute separate burglaries.
Second, it declined to analogize between students living in a dormitory and family residents occupying a single-family home, noting that although the dormitory residents “may share kitchen and bathroom facilities..., this does not make them one big family.... [E]ach student lives and enjoys separate privacy in each of their individual dormitory rooms. These rooms are their homes while attending school. Unauthorized entry into each dormitory room presents a new and separate danger to each of the occupants. Accordingly, individual dormitory rooms and the students who occupy them are entitled to protection under the meaning of section 459.” (O’Keefe, supra, 222 Cal.App.3d at p. 521.)
Defendant urges that the house in question was the “functional equivalent of a dormitory in which Elser’s room is a separate ‘residence.’ ” We disagree, however, that the house was akin to a dormitory as a matter of law.
Here, the house in question was neither a dormitory nor a house in the traditional sense. Though it had attributes common to dormitories, it also had attributes exclusive to a family residence.
First, each bedroom was not a self-contained, separate unit with a separate entrance. For example, the bedroom Hill walked through was a conduit from the main house to the backyard and from Elser’s room to the main house. In other words, the residents shared that room even though one of the residents used it for sleeping.
Second, the residents signed the same lease rather than separate agreements. In other words, the residents shared the entire house.
And third, the residents knew each other and Elser, at least, did not feel the necessity to lock his door. One could therefore infer that the residents had “set up a single-family household. To hold otherwise would require an examination of the relationship between extended families, family not related by blood, adult offspring, visitors, and short-term and long-term guests when determining whether multiple burglary convictions may be had in a single-family dwelling. We do not intend to open the door to that possibility.” (People v. Richardson, supra, 117 Cal.App.4th at p. 576.)
Thus, the question presented to the trial court was more factual than legal. In short, the trial court placed greater significance on the factors supporting the house being akin to a family residence than the factors supporting the house being akin to a dormitory. We cannot disturb the finding. (People v. Redmond (1969) 71 Cal.2d 745, 755 [reversal on the basis of insufficient evidence is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].”].)
ROMERO MOTION
“The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed....” (§ 1385, subd. (a).)
Section 1385, subdivision (a), authorizes a trial court to strike allegations and/or findings in cases brought under the Three Strikes law. (Romero, supra, 13 Cal.4th 497.) In deciding whether to strike an allegation or finding, the trial court “must consider whether, in light of the nature and circumstances of [the defendant’s] present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit....” (People v. Williams (1998) 17 Cal.4th 148, 161, italics added.)
The trial court may strike “ ‘in the furtherance of justice’ ” so that a defendant is not subject to the statutorily increased penalty. (Romero, supra, 13 Cal.4th at p. 529.) The language “in furtherance of justice” requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People, in determining whether there should be a dismissal. (Id. at pp. 530-531.)
To establish an abuse of discretion in denying a motion to strike an allegation or finding, an appellant has the burden “ ‘ “to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.” ’ ” (People v. Carmony (2004) 33 Cal.4th 367, 376-377.) Concomitantly, “a ‘ “decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’ ” ’ ” (Id. at p. 377.)
In denying defendant’s Romero motion, the trial court explained as follows.
“All I would indicate to you, based on the fact that you had some collateral issues, I would give you credit in the scheme of things for the fact that you entered the plea at an early stage rather than later. A number of factors that are of concern to the court, Mr. Burrell. One, is that, Mr. Burrell, you are here before me on the current charge and still on parole for your two prior charges. And in all of the Romeros that I granted typically that is just not a situation that existed. Usually the third strike or the current offense was not a strike. It was a little easier for the court to find grounds for the granting of the Romero. In your case you’re charged with a strike offense for your current offense. I have in the past often will strike one of two strikes whether both committed on the same day as they were in your case on the grounds that maybe somebody had one bad day and goes out and commits another offense and receives life in prison. Not one where the current strike was a strike, the current offense, and we had a situation where the two strikes are in the same day. So this is unusual. And I was inclined, based on what your attorney has said that one of the two residential burglaries was not considered a violent offense because of the hot prowl. The other is. You have done work on your sobriety while you are in custody and to be commended for that. The two strikes were committed on the same day from the report and there was no violence. This case, although, this was a violent felony because of the hot prowl. What I was not aware of, or what I was reminded of--and I apologize I don’t know which--I don’t think I knew about it before, so I was proceeding under the assumption you committed the two strikes in 2006. Sentenced in 2007. And then came along with this one still on parole. I did not know--and [defense counsel] I apologize if somebody did tell me earlier--until [the prosecutor] said today that in 2009 you had a felony with strikes where the District Attorney’s office got rid of both strikes and gave you another chance and put you on probation and then you violated that probation, got sent to prison and you were only three months out of, for the parole violation on three months out for the violation, only three months out of custody when you committed this new offense rather have somebody having one bad day instead you have two strikes. And then four years later commit a new one. I have somebody who commits two strikes, which you are still on parole for, and in 2009, commits another felony, where both strikes are stricken and you get a break there. And you’re back three months after your release from custody. I think that fact, along with the fact that you have been in prison or parole since 1998 and that you had six years of a parole period with nine violations--which I also didn’t know about--certainly tips the scale in this case. And as I said, that your attorney who has Romeros done many times before and [the prosecutor] will attest that--I didn’t write the Three Strikes law--I am generally supportive of it; if I had my druthers if the third strike, if the current offense was not serious, maybe it wouldn’t and I am not in the legislature, did not write it. It is my job to enforce it and I think that, under any circumstance based on the totality of the circumstances in this case, that it is just not an appropriate case for the court to grant you that, your relief.”
Defendant contends that the trial court abused its discretion by denying his motion. He asserts: “The absence of ‘actual violence’ in [his] instant and prior convictions, his cooperation with the police, the single period of aberrant behavior that characterized his prior convictions, the fact that his criminal acts were driven in part by an addiction to alcohol, and the relative severity of a ‘two strikes’ sentence available to the trial court, place [him] outside the spirit of the Three Strikes law, at least ‘in part.’ [Citation.] The trial court thus abused its discretion in failing to strike at least one of [his] prior convictions.”
Defendant manifestly fails to meet his appellate burden. He advances no more than a reargument. Of course, the trial court could have accepted defendant’s points and stricken one of the priors. But it does not follow that rejecting defendant’s arguments and placing more significance on factors unfavorable to defendant was irrational. The reasonable exercise of the trial court’s discretion is manifested clearly in its comments on the record highlighting that defendant’s criminality consisted of committing a violent strike offense while on parole from a prison sentence for violating probation, while having two prior strike offenses. Moreover, the probation report details that defendant violated parole nine times following his release from the prison sentence for the two strike priors. It notes that defendant’s criminality consists of nine felony convictions and 12 misdemeanor convictions. It cites that the probation officer “was unable to identify any factors in mitigation.”
In short, the trial court expressly recognized its duty to exercise its discretion in accordance with the factors set forth in Romero and Williams. But defendant has a lengthy history of criminal behavior that culminated in the offense at issue. It is simply not irrational to give more weight to the extensive criminal history than to defendant’s interpretation of the facts suggesting that mitigating facts (e.g., the current offense was not actually violent even though the law defines it as violent) outweigh the extensive criminal history. Because the trial court did not exceed the bounds of reason, we must uphold its denial of defendant’s motion.
SENTENCING
The parties have not raised the point, but we note that the trial court properly refrained from imposing any enhancement for the violent-felony finding.
Section 667.5, subdivision (a), provides that “Where one of the new offenses is one of the violent felonies specified in subdivision (c), in addition to and consecutive to any other prison terms therefor, the court shall impose a three-year term for each prior separate prison term served by the defendant where the prior offense was one of the violent felonies specified in subdivision (c).” (Italics added.) Thus, it is mandatory to impose a consecutive three-year enhancement for each prior-separate-prison-violent felony if the current offense is a violent felony.
“[I]n addition to the statutory requirements that enhancement provisions be pleaded and proven, a defendant has a cognizable due process right to fair notice of the specific sentence enhancement allegations that will be invoked to increase punishment for his crimes.” (People v. Mancebo (2002) 27 Cal.4th 735, 747.)
Here, however, the information does not plead that defendant had suffered a prior-separate-prison-violent felony. It specifically alleges two separate enhancements for the burglary priors under section 667, subdivision (b), for purposes of the Three Strikes law (denoting that the prior burglaries were first degree and “violent or serious” felonies); two separate enhancements for the burglary priors under section 667, subdivision (a), for purposes of serious-felony five-year enhancements (denoting that the prior burglaries were “serious” felonies); and two separate enhancements--one for the marijuana prior and one for burglary prior No. CC634735--under section 667.5, subdivision (b), for purposes of prior-prison one-year enhancements (denoting that the prison sentence for burglary prior No. CC634735 “was separate from any other prison term alleged in this pleading”). It also alleges the two strike priors for purposes of probation ineligibility (§ 1203.08) and generally alleges that defendant committed the current offense while on parole for an unspecified offense for purposes of probation ineligibility and ineligibility for a suspended sentence (§ 1203.085, subd. (b)).
It is true that one could extrapolate from the prior-prison allegation that defendant had served a separate prison term for case No. CC634735. But the strike allegation is ambiguous by alleging that case No. CC634735 was a “violent or serious” felony, and defendant’s admission to that strike did not clarify whether the strike was a violent felony.
Thus, the strike-enhancement allegations simply put defendant on notice that the People were seeking to prove that the two priors were strikes and the prior-prison enhancement allegation simply put defendant on notice that strike No. CC634735 was a one-year prison prior. They do not put defendant on notice that the People were seeking to prove that the two strike priors were also separate-prison-violent felonies for purposes of three-year enhancements. And, again, defendant only admitted that the strike priors were “violent or serious” felonies and did not admit that prison prior No. CC634735 was a violent felony or a separate prison felony. Moreover, defendant’s admitted marijuana prison prior is not one of the violent felonies listed in section 667.5, subdivision (c), that would carry a three-year enhancement upon a finding that a current offense was a violent felony.
We can only presume that the enhancement allegation for prison prior No. CC634735 was neither admitted by defendant nor tried by the trial court because of an oversight.
“[I]t should be obvious that a court cannot accept a guilty plea or admission from a defendant, and thereafter accept evidence or make findings that change the character of the crime or enhancement admitted so as to increase the authorized punishment therefor.” (People v. Haskin (1992) 4 Cal.App.4th 1434, 1440.)
Thus, no enhancement for the violent-felony finding was justified.
We disagree, however, with the trial court’s stay of the one-year prison-prior enhancement for the marijuana allegation admitted by defendant. The trial court apparently relied on People v. Jones (1993) 5 Cal.4th 1142. There, the court determined that a trial court is not authorized to impose a one-year prior-prison enhancement under section 667.5, subdivision (b), when it has already imposed a five-year serious-felony enhancement under section 667, subdivision (a), for the same prior. (People v. Jones, supra, at pp. 1149-1152.) Here, a stay under Jones would apply to defendant’s burglary prison prior No. CC634735 (had he admitted the allegation) because it was the same prior for which defendant received a five-year serious-felony enhancement. But a stay under Jones is not applicable to the marijuana prison prior as that prior is not the same prior as one for which a five-year serious-felony enhancement was imposed.
Section 667.5, subdivision (b), provides that “Except where subdivision (a) [three-year enhancement for each prior-separate-prison-violent felony where instant offense is a violent felony] applies, where the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony.” (Italics added.)
Thus, it is mandatory to impose a consecutive one-year enhancement for each prior-separate-prison felony if the current offense results in a prison sentence. The trial court’s failure to impose the proper mandatory sentence is an unauthorized sentence that we must correct on appeal even though the issue was not raised by the parties in the trial court or on appeal. (See People v. Talibdeen (2002) 27 Cal.4th 1151, 1157.) And “Correction of an unauthorized sentence is proper ‘even if the correction results in a harsher punishment.’ ” (People v. Cates (2009) 170 Cal.App.4th 545, 552.)
We will modify defendant’s sentence accordingly.
DISPOSITION
The judgment is modified to (1) lift the stay and impose a consecutive one-year enhancement under Penal Code section 667.5, subdivision (b), for the marijuana prison prior, and (2) strike the stayed, consecutive one-year enhancement under Penal Code section 667.5, subdivision (b), for the burglary prison prior No. CC634735. As so modified, the judgment is affirmed. The petition for writ of habeas corpus is denied.
WE CONCUR: Rushing, P.J., Elia, J.