Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Bernardino County, Ct. No. FSB703624, Kyle S. Brodie, Judge.
NARES, J.
A San Bernardino County jury convicted Alphaeus Tyrone Johnson of one count of first degree residential burglary (count 1: Pen. Code, §§ 459, 460, subd. (a)). In a bifurcated trial, the jury found true allegations that Johnson had suffered eight prior residential burglary convictions and also found true allegations that he had suffered three prior prison terms within the meaning of section 667.5, subdivision (b) (hereafter section 667.5(b)).
All further statutory references are to the Penal Code unless otherwise specified.
On the day of sentencing, following a hearing on Johnson's unsuccessful new trial motion (discussed, post), the court found that his eight prior residential burglary convictions were serious felony convictions within the meaning of section 667, subdivision (a)(1) (hereafter section 667(a)(1)), which mandates the imposition of a consecutive five-year prison term enhancement for each prior conviction of a serious felony in California suffered by a defendant who is convicted of a serious felony in the present case. The court then sentenced Johnson to a total prison term of 45 years to life, consisting of a term of 25 years to life for his current conviction of first degree burglary (count 1); plus four consecutive five-year terms under section 667(a)(1) for his prior serious felony convictions, including a five-year term for his 1983 residential burglary conviction in Los Angeles County Superior Court case No. A529244 (hereafter referred to as the Los Angeles County case), which is the principal subject of this appeal.
Specifically, the court imposed under section 667(a)(1) a single five-year prison term enhancement for Johnson's prior convictions in San Bernardino County Superior Court case Nos. SCR39247 and SCR39967, plus one five-year enhancement each (also under § 667(a)(1)) for his prior convictions in the Los Angeles County case (No. A529244), San Bernardino County Superior Court case No. SCR42037, and San Bernardino County Superior Court case No. FSB01233. The court ordered stricken the three section 667.5(b) prior prison term enhancement allegations.
On appeal, Johnson seeks a new trial on the prior conviction sentence enhancement allegations or, alternatively, reversal of the five-year sentence enhancement the court imposed under section 667(a)(1) based on Johnson's 1983 residential burglary conviction in the Los Angeles County case. In seeking this relief, Johnson contends:
1. The court erred in permitting any evidence concerning the issue of whether his prior conviction in the Los Angeles County case was "first or second degree burglary, or a residential burglary, because the court documents establish it was second degree burglary as a matter of law" (italics added);
2. His prior conviction in the Los Angeles County case was not a serious felony conviction for purposes of section 667(a)(1) because his offense was a burglary of the second degree at the time he committed it, and subsequent statutory changes to section 1192.7, subdivision (c)(18) (hereafter § 1192.7(c)(18)) categorizing all residential burglaries as burglaries of the first degree cannot control;
3. Whether his prior convictions qualified as serious felonies was a matter that should have been decided by the court as a matter of law, not submitted to the jury as a factual matter;
4. The jury instructions were erroneous because they directed the jury to decide that his prior convictions were burglaries of the first degree if they were residential, thereby removing this issue from the jury's consideration in violation of his right to due process of law;
5. The court erred in refusing to instruct the jury regarding the official duty presumption under Evidence Code section 664;
6. The court erred when it permitted expert testimony from a prosecutor concerning whether Johnson's prior convictions qualified as serious felonies; and
7. The abstract of judgment should be corrected to reflect that the court imposed four, not one, five-year prison term enhancements under section 667(a)(1).
For reasons we shall explain, we affirm the judgment. However, we remand the matter with directions to correct the abstract of judgment.
FACTUAL BACKGROUND
Steven Cade, who lived in an unincorporated area of San Bernardino County, found Johnson standing in his bedroom holding Cade's disassembled handgun. Cade had not given Johnson permission to enter his home. When Cade asked his mother to call 911, Johnson "shoulder and head butted" him. After a struggle, Johnson yelled, "I've got a gun. Back off. I'll shoot you." He then ran outside, got in a car, and drove away. Johnson was arrested later that day.
DISCUSSION
I
FIVE-YEAR SENTENCE ENHANCEMENT (§ 667(A)(1)) FOR JOHNSON'S 1983 SECOND DEGREE RESIDENTIAL BURGLARY CONVICTION IN THE LOS ANGELES COUNTY CASE
Johnson's principal claim is that the consecutive five-year sentence enhancement that the court imposed under section 667(a)(1) based on (1) the jury's finding that he was convicted in 1983 of residential burglary in the Los Angeles County case, and (2) the court's later finding that this conviction was a serious felony conviction within the meaning of section 1192.7(c)(18) (discussed, post), must be stricken, or, alternatively, the matter should be remanded for retrial. We conclude Johnson's claim is unavailing and affirm his sentence.
Johnson incorrectly suggests that the jury found his prior convictions qualified as serious felonies for purposes of section 667(a)(1). As we shall discuss, the record shows the court, not the jury, made the finding that Johnson's prior convictions qualified as serious felonies for purposes of section 667(a)(1).
A. Procedural Background
1. Bench trial
After the jury found Johnson guilty of first degree burglary as charged in count 1, the court conducted a bifurcated trial on the prior conviction and prior prison term allegations (§§ 667(a)(1), 667.5(b)) set forth in the amended information. Following a bench trial on the issue of identity, the court found that Johnson was the same Alphaeus Johnson who was the subject of the records admitted into evidence concerning the prior conviction allegations.
2. Defense motion to exclude expert testimony
Prior to the jury trial portion of the bifurcated proceedings, the defense moved to exclude the expert opinion testimony of Richard Young, a supervising deputy district attorney at the San Bernardino County District Attorney's Office, on the ground his testimony regarding the conviction records would constitute improper vouching by another prosecutor in favor of the prosecution in this case. The court denied the motion to exclude Young's testimony, but indicated that the defense could renew the motion "if there [were] specific questions that would appear to be vouching."
"Impermissible 'vouching' may occur where the prosecutor places the prestige of the government behind a witness through personal assurances of the witness's veracity or suggests that information not presented to the jury supports the witness's testimony." (People v. Fierro (1991) 1 Cal.4th 173, 211, disapproved on a different ground in People v. Letner and Tobin (2010) 50 Cal.4th 99, 204-206.)
3. Jury trial
a. Initial CALCRIM No. 3101 instruction
Before the prosecution's expert witness, Young, testified, the court instructed the jury with a modified version of CALCRIM No. 3101, which, as pertinent here, informed the jury as follows that the prosecution was alleging Johnson had been convicted of "first degree residential burglary" in 1983 in the Los Angeles County case:
"The People have alleged that the defendant was previously convicted of other crimes. It has already been determined that the defendant is the person named in exhibits 17 through 23. Those are the exhibits reviewed in the earlier portion of this trial. You will get copies of those exhibits as well. [¶] You must decide whether the evidence proves that the defendant was convicted of the alleged crimes. The People allege that the defendant has been convicted of... a violation of... section 459[, ] first degree residential burglary[, on] July 19th, 1983 in Los Angeles Superior Court case number A529244...." (Italics added.)
b. The People's case
During the jury trial, the prosecution offered several voluminous sets of conviction records to prove the various prior conviction allegations, including the allegation regarding Johnson's burglary conviction in the Los Angeles County case and called Young to explain those records to the jury.
The amended information filed in the instant case contains a section 667(a)(1) sentence enhancement allegation that on July 19, 1983, Johnson suffered a serious felony conviction for a violation of section 459 in the Los Angeles County case.
Exhibit 19, which the court admitted into evidence, contained records of Johnson's 1983 burglary conviction in the Los Angeles County case. The records showed that the information filed against him in that case accused him "of the crime of BURGLARY, in violation of Section 459" and alleged he committed that offense "on or about the 24th day of September, 1982" in Los Angeles County by "willfully and unlawfully enter[ing] the residence... and building occupied by [the victim] with the intent to commit larceny...." (Italics added.) The probation officer's report indicated the residential burglary occurred during daytime, at about 2:00 p.m..
The prosecution presented evidence that the reporter's transcript of the change of plea hearing held in the Los Angeles County case on July 19, 1983, showed that the court told Johnson at that hearing that he was charged with one count of "burglary in the first degree, burglary of a residence" in violation of section 459 and that it intended to "impose the mid term in State Prison, which is two years, for this offense." The transcript of that hearing also showed that, after Johnson waived his constitutional rights, he was asked: "[T]o the charge in Information [No.] A529244, that charge being a violation of Section 459 of the Penal Code, burglary, committed on or about the 24th day of September, 1982, it being further alleged that that was burglary of a residence, how do you now plead?" (Italics added.) Johnson replied, "Guilty." Defense counsel, when asked whether he joined in Johnson's waivers and concurred in the guilty plea, answered, "Yes. Counsel joins." The court then denied probation under section 462 and sentenced Johnson to "the median [prison] term of two years."
The Honorable Loren Miller, Jr., Judge of the Superior Court of Los Angeles County.
Section 462, subdivision (a) provides: "Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any person who is convicted of a burglary of an inhabited dwelling house... or the inhabited portion of any other building." (Italics added.)
The court's original minute order regarding the July 19, 1983 change of plea hearing in the Los Angeles County case indicated in box No. 57 that Johnson had pleaded guilty, with the prosecutor's consent and the court's approval, to a violation of "[section] 459 P[enal ]C[ode], of the first degree, a felony." (Italics added.)
Several months later, however, the court entered a nunc pro tunc order dated December 9, 1983, which "corrected" the original minute order "nunc pro tunc as of 7-19-83" by changing the first degree burglary conviction to a second degree burglary conviction.
The court instructed the jury in the instant case that, "Nunc pro tunc [is] a phrase applied to acts allowed to be done after the time when they should be done with a retroactive effect, i.e., with the same effect as if regularly done[;] nunc pro tunc is an entry made now of something actually previously done to have effect of a former date."
The "Nunc Pro Tunc Order" stated: "It appearing to the Court that through inadvert[e]nce and clerical error... the minute order of 7-19-83 for Dept. EA E in the above-entitled action does not properly reflect the Court's order, said minute order is ordered corrected nunc pro tunc as of 7-19-83 as follows: [¶] By striking, in box 57: 'Section 459 P.C., of the first degree'[;] [¶] By adding in box 57: 'Section 459 P.C., of the second degree[.]' [¶] The County Clerk's Office is directed to prepare a corrected Abstract of Judgment in accordance with [the] above order." (Original underscoring.)
The conviction records in exhibit 19 also included two abstracts of judgment filed in the Los Angeles County case. The first abstract, dated July 21, 1983, indicated that Johnson was convicted of "Burglary 1st" in violation of section 459, and he was sentenced to the middle prison term of two years. The amended abstract, dated December 13, 1983 (after the court entered its December 9, 1983 nunc pro tunc order minute order), indicated that Johnson was convicted of "Burglary 2nd" in violation of section 459 and that he was sentenced to the middle prison term of two years.
During his testimony, the prosecution's expert, Young, acknowledged the "apparent conflict" in the documents in the Los Angeles County case "as to whether... [Johnson] was convicted of a first-degree residential burglary or a second-degree burglary." Young opined that Johnson was convicted of first degree burglary in that case, notwithstanding both the nunc pro tunc correction of the court's original minute order and the amended abstract of judgment indicating that Johnson had pleaded guilty to second degree burglary. Young based his opinion both on the transcript of the court's statements during the July 1983 change of plea (and sentencing) proceeding, including the court's finding under section 462 (see fn. 6, ante) that Johnson was ineligible for probation, and on the probation officer's report.
c. Defense motion under section 1118.1
At the close of the prosecution's case, defense counsel brought a motion for acquittal under section 1118.1, claiming the jury could not reasonably find beyond a reasonable doubt that Johnson suffered a prior first degree burglary conviction in the Los Angeles County case. Defense counsel argued that the midterm prison sentence of two years indicated that Johnson was convicted of second degree burglary, not first degree burglary, in that case. In opposition to the motion, the prosecutor pointed out that the court had found Johnson ineligible for probation "pursuant to [section] 462 of the Penal Code, which relates only to firs[t]-degree residential burglary." The prosecutor also argued that the transcript of the change of plea hearing, which showed that Johnson pleaded guilty to a charge of first degree burglary, "rebuts what the Court did with [the] nunc pro tunc [minute order]." The court denied Johnson's section 1118.1 motion, stating, "I'm going to let this go to the jury."
d. The defense case
The defense presented the testimony of Jeffrey Canty, a supervising deputy public defender at the San Bernardino County Public Defender's Office, to rebut the prosecution's evidence that Johnson's prior conviction in the Los Angeles County case was a conviction of burglary in the first degree. Citing former section 460, Canty testified that in 1982, before the law changed, every burglary of an inhabited dwelling house, or of an inhabited portion of any other building, committed at nighttime was burglary in the first degree. Thus, he stated, in order for a burglary of an inhabited dwelling to be a first degree burglary before the change in the law, "it would have to occur at nighttime." Indicating that the term "nighttime" meant from dusk until dawn, the period of time after sunset and before sunrise, Canty testified that in order for a burglary to be a burglary in the first degree before 1983, "there had to be an entry to an inhabited dwelling during that period of after sunset and before sunrise." Canty also testified that the nighttime requirement no longer applied in 1983 as a result of a change in the law. Thus, from 1983 on, burglary of an inhabited dwelling was burglary in the first degree regardless of whether it occurred in daytime or nighttime.
e. Modified CALCRIM No. 3101 instruction; supplemental instruction; no presumption of official duty instruction (Evid. Code, § 664 )
In additional instructions to the jury, the court gave a modified version of the CALCRIM No. 3101 instruction that it initially gave (discussed, ante). As pertinent here, the court modified that instruction by striking the words "first degree" so as to inform the jurors that the prosecution had the burden of proving Johnson had been convicted of residential burglary, not first degree residential burglary, in the Los Angeles County case on July 19, 1983.
The text of the modified version of CALCRIM No. 3101, as given by the court, is set forth in footnote 14, post.
The court also gave a supplemental instruction (discussed, post) pertaining to the allegations regarding prior convictions and prior prison terms, which informed the jury (among other things) that "[a] residential burglary is a serious felony, whether it happened at night or during the day." (Italics added.)
f. Jury verdicts
The jury found true allegations that Johnson had suffered eight prior residential burglary convictions. The jury returned the following verdict regarding Johnson's prior 1983 burglary conviction in the Los Angeles County case, finding that his conviction was for "Residential Burglary" in violation of section 459:
"We the jury... find the allegation that as to Count 1, [Johnson] has suffered the following prior conviction: The crime of Residential Burglary, in violation of [section] 459 on and about the 19th day of July, 1983, in the Superior Court of the State of California, County of Los Angeles, case number A529244, to be TRUE." (Italics added.)
As the foregoing verdict shows, the jury did not make a finding that Johnson's prior 1983 residential burglary conviction in the Los Angeles County case was a serious felony within the meaning of section 667(a)(1) as alleged in the amended information.
g. Johnson's new trial motion
Johnson brought a motion seeking a new trial. Asserting that the jury found true the allegation that he was convicted of first degree burglary in the Los Angeles County case, Johnson claimed the prosecution's deputy district attorney witness, Young, erroneously told the jury to ignore the nunc pro tunc minute order that showed his conviction was for second degree burglary, not first degree burglary, in that case and thus that his prior conviction was "not a strike" (i.e., not a serious felony for purposes of the section 667(a)(1) sentence enhancement allegation). Johnson asserted that the transcript of the change of plea hearing in the Los Angeles County case showed the court told him it was going to sentence him to the midterm of two years in prison, and this statement by the court could "only be consistent with a plea to [second] degree burglary, " and thus the jury's verdict that he was convicted of first degree burglary in the Los Angeles County case was not supported by the evidence at trial.
Johnson also claimed that the jury, in making an "emotional decision" that "disregard[ed] the law, " may have improperly relied on Young's opinion that Johnson's prior conviction in the Los Angeles County case was for first degree burglary because Young testified that he was an experienced government worker, and thus his testimony "was improper vouching, " which in turn rendered the jury's verdict "improper."
In addition, Johnson claimed the court committed error by "craft[ing]" instructions and verdicts that "ask[ed] the jury to determine if [he] ha[d] prior convictions for 'First Degree Residential Burglary, ' '' which (Johnson asserted) defense witness Canty testified was a shorthand term used by attorneys and judges, but was not a crime.
In written opposition to Johnson's new trial motion, the People argued that Young had not engaged in vouching, and the jury's verdicts were supported by the evidence.
i. Court's denial of Johnson's new trial motion, and its finding that Johnson's prior "residential burglaries" were serious felonies under section 1192.7 (c)(18)
Following a hearing, the court denied Johnson's new trial motion. Noting that under People v. Garrett (2001) 92 Cal.App.4th 1417 (Garrett) "the degree [of a burglary] is less important than the question of conduct, " the court found that "the conduct in question is residential, " Johnson's prior burglary convictions "are residential burglaries, " and "as such they meet the definition of a serious felony."
h. Court's imposition of the five-year section 667 (a)(1) sentence enhancement
Based on the jury's verdict that Johnson had suffered a prior residential burglary conviction in the Los Angeles County case, and the court's ultimate determination that this prior conviction was a serious felony, the court imposed under section 667(a)(1) the five-year prison term enhancement that Johnson now claims must be stricken on appeal.
B. Section 667(a)(1)
As pertinent here, section 667(a)(1) mandates the imposition of a consecutive five-year prison term enhancement for each prior conviction of a serious felony charged and separately tried in California that is suffered by a defendant who is convicted of a serious felony in the present case.
Section 667(a)(1) provides: "In compliance with subdivision (b) of Section 1385, 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, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively."
C. Analysis
Johnson's principal contention is that the five-year sentence enhancement that the court imposed under section 667(a)(1) based on his 1983 prior burglary conviction in the Los Angeles County case must be stricken because that burglary offense, which the record shows was a daytime residential burglary that he committed in September 1982, was not a serious felony within the meaning of section 1192.7(c)(18), and thus his conviction for that offense was not a prior serious felony conviction for purposes of section 667(a)(1). More specifically, he asserts that when he committed the current burglary offense in 2007, section 1192.7(c)(18) defined, and still defines, the term "serious felony" as "any burglary of the first degree" (italics added); but (he maintains) the record shows his 1983 burglary conviction in the Los Angeles County case was only a conviction for burglary in the second degree, and thus "[t]he [section 667(a)(1)] five-year enhancement stemming from the Los Angeles prior [conviction] must be vacated" because it was not a conviction for a serious felony. This contention is unavailing.
Section 1192.7(c)(18) provides: "(c) As used in this section, 'serious felony' means any of the following: [¶]... (18) any burglary of the first degree."
As a preliminary matter, we note that although the prosecution's witness, Young, testified that Johnson's conviction in the Los Angeles County case was a conviction for burglary in the first degree, the Attorney General agrees with Johnson's assertion on appeal that the 1983 conviction was a conviction for burglary in the second degree. We conclude the parties' characterization of Johnson's 1983 prior conviction as a second degree burglary is correct, as it is consistent with the portion of the record showing that the court in the Los Angeles County case issued a nunc pro tunc order in December 1983 to correct its July 19, 1983 minute order to reflect that Johnson in fact had been convicted in that case of second degree, not first degree, burglary. We note that before 1983, a residential burglary was not a burglary in the first degree unless it was committed at night. (People v. Cruz (1996) 13 Cal.4th 764, 770 (Cruz); Historical and Statutory Notes, 48A West's Ann. Pen. Code (2010 ed.) foll. § 460, p. 562.) In 1982, the Legislature amended the burglary statute (§ 460) by removing the nighttime requirement for first degree burglary, effective January 1, 1983. (Cruz, supra, at p. 770; Stats. 1982, ch. 1290, § 1, p. 4774; Stats. 1982, ch. 1297, § 1, p. 4786.) Here, the record shows Johnson committed the daytime second degree residential burglary at issue here in September 1982, before the nighttime requirement for first degree burglary was deleted from the burglary statute.
Although Johnson correctly argues that his conviction in the Los Angeles County case was a conviction for burglary in the second degree, we reject his contention that the burglary he committed in that case was not a serious felony within the meaning of section 1192.7(c)(18) for purposes of the five-year sentence enhancement provisions of section 667(a)(1). The California Supreme Court has explained that "[i]n June 1982, the voters adopted section 1192.7(c)(18) as part of Proposition 8, " an initiative that "enacted sections 667 and 1192.7 to provide for a sentence enhancement for repeat offenders who commit 'serious felonies' as enumerated in section 1192.7." (Cruz, supra, 13 Cal.4th at p. 772.) As the Court of Appeal correctly observed in People v. Garrett, supra, 92 Cal.App.4th at page 1423, "[t]he Supreme Court [in Cruz] "found the intent of the electorate [in enacting section 1192.7(c)(18)] was to treat all residential burglaries as 'serious' felonies." (Italics added.)
Indeed, the Supreme Court in Cruz, noting that "section 1192.7(c)(18), as originally enacted... listed as a serious felony 'burglary of a residence', " stated that in People v. Jackson (1985) 37 Cal.3d 826 (Jackson), it "explained that the electorate treated burglary of a residence as seriously as the violent felonies listed in section 1192.7 on the premise that such burglaries are so inherently dangerous that persons who repeatedly commit this type of offense should be punished as harshly as violent recidivists." (Cruz, supra, 13 Cal.4th at pp. 772-773, italics added.) The Cruz court also explained that, "[i]n order to carry out the electorate's intent to deter such conduct, we construed section 1192.7(c)(18) 'as referring not to specific criminal offenses, but to the criminal conduct described therein.' " (Cruz, supra, 13 Cal.4th at p. 773, quoting Jackson, supra, 37 Cal.3d at p. 832 & citing People v. Myers (1993) 5 Cal.4th 1193, 1199; People v. Guerrero (1988) 44 Cal.3d 343, 347-348.)
In other words, the California Supreme Court has held that in order to carry out the electorate's intent in adopting section 1192.7(c)(18), that subdivision must be construed as referring not to any specific criminal offenses, such as the degree of the burglary in question, but to the criminal conduct described in section 1192.7(c)(18). (Cruz, supra, 13 Cal.4th at p. 773; Jackson, supra, 37 Cal.3d at p. 832; Garrett, supra, 92 Cal.App.4th at p. 1423.)
Applying here the Supreme Court's interpretation of section 1192.7(c)(18), we conclude that Johnson's reliance on the fact that his 1983 conviction was for a second degree residential burglary, and not for a first degree residential burglary, is misguided and unavailing because the degree of the residential burglary offense is immaterial to the determination of whether a burglary offense is a serious felony within the meaning of section 1192.7(c)(18). (See Cruz, supra, 13 Cal.4th at p. 773; Jackson, supra, 37 Cal.3d at p. 832.) It is the criminal conduct described in section 1192.7(c)(18), and thus the residential character of the burglary he committed in 1982 in the Los Angeles County case, not the degree of that residential burglary, that is relevant to the determination of whether that offense is a serious felony within the meaning of section 1192.7(c)(18), and thus whether his 1983 conviction for that crime is a prior serious felony conviction for purposes of the five-year enhancement provisions of section 667(a)(1).
Section 1192.7(c)(18) currently provides that "any burglary of the first degree" is a serious felony. Burglary of an "inhabited dwelling house" is a first degree burglary. (§ 460, subd. (a).) "[T]he terms residence and inhabited dwelling house for purposes of a serious felony are equivalent." (People v. Castellanos (1990) 219 Cal.App.3d 1163, 1175, citing People v. Harrell (1989) 207 Cal.App.3d 1439, 1445.) "Even the common understanding of residence, which connotes a place of abode of some permanency [citations], cannot be differentiated from an inhabited dwelling unit for purposes of first degree burglary." (People v. Deay (1987) 194 Cal.App.3d 280, 284.)
It is true, as Johnson points out, that in March 2000 the voters in California passed Proposition 21 that amended section 1192.7, subdivision (c)(18) to define "any burglary of the first degree" as a serious felony. (Garrett, supra, 92 Cal.App.4th at p. 1424; Historical and Statutory Notes, 50D West's Ann. Pen. Code (2004 ed.) foll. § 1192.7, pp. 89-90.) However, in enacting Proposition 21, the voters did not intend to exempt from the section 1192.7(c)(18) list of serious felonies pre-1983 residential burglaries that were committed during daytime and resulted in second degree burglary convictions. (Garrett, supra, at p. 1432.)
1. Johnson's remaining contentions
a. Denial of Johnson's section 1118.1 motion for dismissal
Johnson's remaining contentions are also unavailing. He first asserts the court "erred in permitting any evidence concerning the issue of whether or not the Los Angeles County prior was first or second degree burglary, or a residential burglary, because the court documents establish it was second degree burglary as a matter of law." (Italics added.) Specifically, he claims that, "[b]ecause the record of conviction established [his 1982 Los Angeles County burglary was] a second degree burglary, the trial court erred in denying the defense [section 1118.1] motion to dismiss this prior, " in which the defense claimed in the instant case that the jury could not reasonably find beyond a reasonable doubt that he suffered a prior first degree burglary conviction in the Los Angeles County case.
In support of this claim, Johnson devotes about 15 pages of his opening brief revisiting the various proceedings and court records related to his guilty plea in the Los Angeles County case, particularly the accusatory pleadings filed in that case; his guilty plea at the July 19, 1983 change of plea hearing; the court's minute order regarding that hearing; his sentence in that case; the first abstract of judgment; the court's December 9, 1983 nunc pro tunc minute order, which corrected the original July 19, 1983 minute order by changing the first degree burglary conviction to a second degree burglary conviction; and the amended abstract of judgment. In his reply brief, he asserts the Attorney General "does not refute the contention that the 1983 Los Angeles [County] conviction was one for burglary of the second degree.
Johnson's claim is moot as the Attorney General readily acknowledges, and we have already concluded, that Johnson's prior conviction in the Los Angeles County case was for second degree burglary, not first degree burglary.
b. Role of the jury
Johnson also contends that "whether... [his] prior convictions qualified as 'serious felonies' was a matter to be decided by the court as a matter of law, not submitted to the jury as a factual matter." Asserting that "[t]he prior convictions either were or were not serious felonies depending on the degree of burglary involved, " he claims that, "[w]hile there appear to be no disputed issues as to the other section 667[(a)(1)] priors, " the court's error "was prejudicial as to the Los Angeles County prior at the very least." Claiming that his conviction in the Los Angeles County case "was not a qualifying serious felony conviction as a matter of law because it was a second-degree burglary" (italics added), Johnson also asserts that, "had the court decided this question as a matter of law─and had it applied the correct law─it is more than reasonably probable that it would have found that this prior was not a qualifying serious felony conviction."
Citing People v. McGee (2006) 38 Cal.4th 682 and People v. Kelii (1999) 21 Cal.4th 452, the Attorney General correctly acknowledges that, "to the extent the question [of whether the Los Angeles County prior was a serious felony] was submitted to the jury, the trial court erred."
Johnson's claim is unavailing. The record shows the jury only found that Johnson had suffered eight prior residential burglary convictions, including his conviction in the Los Angeles County case. The record also shows that the court, not the jury, found that Johnson's eight prior residential burglary convictions were serious felony convictions within the meaning of section 667(a)(1). Specifically, the reporter's transcript of the combined new trial motion and sentencing hearing shows the court found that "the conduct in question is residential, " Johnson's prior burglary convictions "are residential burglaries, " and "as such, they meet the definition of a serious felony."
Johnson's claim is also unavailing because it is based on the false premise that (as he maintains) "[t]he prior convictions either were or were not serious felonies depending on the degree of burglary involved." (Italics added.) We conclude that Johnson's reliance on the fact that his 1983 conviction was for a second degree residential burglary, and not for a first degree residential burglary, is misguided and unavailing because the degree of a residential burglary is immaterial to the determination of whether it is a serious felony within the meaning of section 1192.7(c)(18). This same principle applies to the other prior residential burglary convictions that are the subject of this appeal.
c. Jury instructions (modified CALCRIM No. 3101 and supplemental instruction)
Johnson next contends the jury instructions "were erroneous because they directed the jury to decide that the prior convictions were burglaries of the first degree if they were residential, thereby removing this issue from the jury's consideration in violation of his right to due process of law." This contention is unavailing.
i. Background
The court gave a modified version of CALCRIM No. 3101, informing the jurors that the prosecution had the burden of proving Johnson had been convicted of residential burglary in the Los Angeles County case on July 19, 1983.
The modified version of CALCRIM No. 3101, as given by the court, stated in part: "The People have alleged that the defendant was previously convicted of other crimes.... [¶] You must decide whether the evidence proves that the defendant was convicted of the alleged crimes. The People allege that the defendant has been convicted of... a violation of... section 459[, ] residential burglary[, on] July 19th, 1983 in Los Angeles Superior Court case number A529244...." (Italics added.)
The court also gave the following supplemental instruction with respect to the allegations regarding prior convictions and prior prison terms:
"The People have alleged that [Johnson] has suffered eight prior serious felony convictions for burglary. [¶] In order to prove those allegations, the People must prove beyond a reasonable doubt that in those prior cases, [Johnson] was convicted of burglarizing a residence in violation of Penal Code section 459. [¶]... [¶] First degree burglary and residential burglary do not necessarily mean the same thing in the context of determining whether the People have proven that [Johnson] has suffered a prior serious felony conviction. [¶] The degree [of] the burglary conviction is a fact that you may consider and give whatever weight that you deem appropriate. [¶] A residential burglary is a serious felony, whether it happened at night or during the day. [¶]... [¶] If you conclude that the People have not proven that [Johnson] was convicted of burglarizing a residence, you must find the allegations not true." (Italics added.)
ii. Analysis
Johnson complains that "[t]he court ruled the degree of burglary at the time [it was committed] was irrelevant and burglary of a residence was a serious felony, so that the question the jury had to answer was whether... the act was a burglary of a residence." He contends the court's supplemental instruction "that all residential burglaries─whenever committed─constituted serious felonies for purposes of [the section 667(a)(1) five-year] enhancement relieved the prosecution of its burden of proof on this issue."
The Attorney General responds that "the jury found only that [Johnson] was convicted of residential burglary, and made no finding as to whether the conviction constituted a serious felony conviction." The Attorney General argues that Johnson forfeited this instructional error claim "by failing to object to the [modified version of CALCRIM No. 3101 and the supplemental instruction] below" and, "[i]n any event, [Johnson] cannot show he was prejudiced by the alleged errors" because "[t]he trial court's instructions as to the jury's duty to determine if the conviction was for residential burglary was a superfluous instruction not warranted in this case."
We conclude Johnson has forfeited this claim of instructional error. " '[A] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.' " (People v. Lewis (2001) 25 Cal.4th 610, 666.) Here, the challenged instructions were both "correct in law" and "responsive to the evidence." We have already concluded that the degree of a residential burglary is immaterial to the determination of whether such a burglary is a serious felony within the meaning of section 1192.7(c)(18). Furthermore, Johnson does not dispute that he failed to object in the trial court to the giving of the challenged instructions.
Were it necessary to reach the merits of this instructional error claim, we would conclude that any such error was harmless under any standard. "Sections 1025 and 1158 require the jury to determine whether the defendant 'has suffered' the prior convictions." (People v. Kelii, supra, 21 Cal.4th at p. 455.) Here, the record shows the jury found Johnson had suffered the alleged prior convictions in question, and the court found both that Johnson was the same Alphaeus Johnson who was the subject of the records admitted into evidence concerning the prior conviction allegations and that Johnson's eight prior residential burglary convictions were serious felony convictions within the meaning of section 667(a)(1).
Section 1025, subdivision (b) provides: "Except as provided in subdivision (c), the question of whether or not the defendant has suffered the prior conviction shall be tried by the jury that tries the issue upon the plea of not guilty, or in the case of a plea of guilty or nolo contendere, by a jury impaneled for that purpose, or by the court if a jury is waived." Subdivision (c) of that section provides: "Notwithstanding the provisions of subdivision (b), the question of whether the defendant is the person who has suffered the prior conviction shall be tried by the court without a jury." Section 1158 provides: "Whenever the fact of a previous conviction of another offense is charged in an accusatory pleading, and the defendant is found guilty of the offense with which he is charged, the jury, or the judge if a jury trial is waived, must unless the answer of the defendant admits such previous conviction, find whether or not he has suffered such previous conviction. The verdict or finding upon the charge of previous conviction may be: 'We (or I) find the charge of previous conviction true' or 'We (or I) find the charge of previous conviction not true, ' according as the jury or the judge find that the defendant has or has not suffered such conviction. If more than one previous conviction is charged a separate finding must be made as to each."
d. Jury instructions (Evid. Code, § 664 )
Johnson also contends the court prejudicially erred in refusing to instruct the jury regarding the official duty presumption under Evidence Code section 664. This claim is also unavailing.
i. Background
The court denied a defense request for an instruction under Evidence Code section 664 on the presumption of performance of an official duty, which would have informed the jury that "[i]t is presumed that an official duty has been regularly performed, " finding that such an instruction would be "argumentative."
Evidence Code section 664 provides: "It is presumed that official duty has been regularly performed. This presumption does not apply on an issue as to the lawfulness of an arrest if it is found or otherwise established that the arrest was made without a warrant."
ii. Analysis
Johnson asserts that "one of the significant issues was the effect of the nunc pro tunc order [dated December 9, 1983] clarifying that the Los Angeles County prior conviction was for second-degree burglary." (Italics added.) He maintains "[t]his instruction was relevant to the issue of whether... it could be presumed the Los Angeles trial judge acted correctly in making the nunc pro tunc order."
Johnson also asserts the court's failure to give the requested instruction on the presumption of performance of an official duty was prejudicial because "the face of the documents, as corrected by the nunc pro tunc order, reflected the Los Angeles prior conviction was for second-degree burglary" (italics added), and "[t]he absence of this instruction permitted the prosecution to undermine facially valid documents to [Johnson's] detriment. [¶] Moreover, because the jury was not given this instruction, the prosecutor was permitted to argue the judge [in the Los Angeles County case] made some error" when he corrected the abstract of judgment.
As previously noted, the conviction records in exhibit 19 included two abstracts of judgment filed in the Los Angeles County case. The first indicated that Johnson was convicted of "Burglary 1st" in violation of section 459. The amended abstract, dated December 13, 1983 (after the court entered its nunc pro tunc order minute order earlier that month), indicated that Johnson was convicted of "Burglary 2nd" in violation of section 459.
The Attorney General responds that the claimed instructional error was harmless. Specifically, the Attorney General argues that the instruction in question was "superfluous" and "not warranted" because "the jury's role was to determine whether [Johnson] suffered the prior conviction, and not whether the conviction was a serious felony conviction."
We conclude that any error by the court in refusing to instruct the jury regarding the official duty presumption under Evidence Code section 664 was harmless under any standard. Johnson's theory of prejudice is somewhat unclear. He appears to be claiming that, as a result of the claimed instructional error, the jury in the instant case might infer that the court in the Los Angeles County case incorrectly found that Johnson's conviction in that case was for second degree residential burglary and that such an inference affected the jury's verdict. However, the jury's role was limited to determining whether Johnson in fact suffered the alleged residential burglary conviction in the Los Angeles County case. The degree of that alleged residential burglary conviction was immaterial.
e. Young's expert testimony
Last, Johnson contends that, over defense objections, the court "erroneously permitted the prosecution to introduce 'expert' testimony [from Young, a prosecutor, ] concerning whether... the prior offenses amounted to 'serious felonies.' " The Attorney General acknowledges the court erred in "allow[ing] expert testimony as to the facts underlying the conviction and whether the conviction was of a residence, and whether it was for first or second degree burglary."
Johnson's contention is unavailing. The court, not the jury, made the determination as to whether the prior burglary convictions were for serious felonies; the jury did not make that determination. Accordingly, we conclude the claimed evidentiary error was harmless.
II
ABSTRACT OF JUDGMENT
Last, Johnson asserts the abstract of judgment in this case should be modified to reflect that the court imposed four five-year prison term enhancements under section 667(a)(1). The Attorney General agrees.
The record shows that the court imposed four consecutive five-year prison terms under section 667(a)(1) as sentence enhancements for his prior serious felony convictions (see fn. 2, ante) and that it ordered stricken the three section 667.5(b) prior prison term enhancement allegations.
However, the abstract of judgment incorrectly indicates the court imposed three five-year terms under section 667.5(b) and one five-year term under section 677(a)(1).
Accordingly, we conclude this matter must be remanded with directions that the court clerk prepare an amended abstract of judgment that (1) deletes the portion of the current abstract of judgment that incorrectly indicates the court imposed three five-year terms under section 667.5(b) and one five-year term under section 677(a)(1), and (2) reflects instead that the court imposed four consecutive five-year prison terms under section 667(a)(1).
DISPOSITION
The judgment is affirmed. The matter is remanded to the trial court with directions that the clerk prepare an amended abstract of judgment that (1) deletes the portion of the current abstract of judgment that incorrectly indicates the court imposed three five-year terms under section 667.5(b) and one five-year term under section 677(a)(1), and (2) reflects instead that the court imposed four consecutive five-year prison terms under section 667(a)(1), and that a certified copy of the amended abstract of judgment be forwarded to the Department of Corrections and Rehabilitation.
WE CONCUR: McCONNELL, P. J., IRION, J.