Opinion
D038155.
7-29-2003
THE PEOPLE, Plaintiff and Appellant, v. STEVE CHARLES LOWE, Defendant and Appellant.
Steve Charles Lowe was convicted of residential burglary. It was found true he had served three prior terms of imprisonment within the meaning of Penal Code section 667.5, subdivision (b), that he suffered three prior felony convictions within the meaning of section 667, subdivision (a)(1), and six prior felony convictions within the meaning of section 667, subdivisions (b) through (i). Lowe was sentenced to a prison term of 35 years to life. He appeals, arguing the trial court erred in admitting evidence of a prior burglary to show intent.
All further statutory references are to the Penal Code unless otherwise noted.
The People also appeal, arguing the trial court erred in striking a true finding that appellant suffered a prior serious felony conviction within the meaning of section 667, subdivision (a)(1). Appellant argues any error in striking the prior was academic because the out-of-state felony on which the finding was based is not a serious felony within the meaning of section 667, subdivision (a)(1).
FACTS
A. Prosecution Case
At approximately 11:00 a.m. on November 29, 2000, Lea Rubin was returning by car to her apartment in the Hillcrest area of San Diego. Before getting out her vehicle she saw appellant walking down the steps of her apartment building carrying a suitcase belonging to her. Appellant placed the suitcase on the ground and walked around the side of the building. Two minutes later he returned, picked up the suitcase and walked away. Rubin called the police, reported the crime and described the man who took her suitcase.
Moments later, Officer Robert Roche was driving five blocks from the scene of the crime and saw a man with a suitcase fitting the description of the person Rubin saw leaving her apartment building. That man, appellant, was detained. Rubin was brought to the scene and identified appellant as the man she saw leaving her apartment building. In the suitcase the officer found a VCR and other property taken from Rubins apartment. In appellants pocket the officer found jewelry, a watch and other items belonging to Rubin. Appellant was wearing a ring belonging to her.
Rubin and police officers returned to her apartment and discovered it had been ransacked. A window was open and the screen was missing.
An officer testified a series of burglaries occurred in the area of Rubins apartment. The burglaries ended with appellants arrest.
Evidence was presented that in 1985 appellant committed a burglary in the Hillcrest area of San Diego within blocks of Rubins apartment.
B. Defense Case
Appellant testified he did not enter Rubins apartment. He stated that around the time Rubins apartment was burglarized he was walking nearby and noticed a suitcase sitting on a bench. Thinking it was property abandoned by a homeless person, he took it. He did not know the suitcase was stolen.
DISCUSSION
A. Prior Burglary
The trial court pursuant to Evidence Code section 1101, subdivision (b), admitted evidence of appellants commission of a burglary in 1985 for the purpose of proving his intent to permanently deprive the victim of her property in this case. Appellant argues it was an abuse of discretion to admit the evidence since it was more prejudicial than probative.
1. Background
In a trial brief the prosecution indicated it would offer as evidence of intent, identity and motive burglaries committed by appellant in 1985 and 1989. In his trial brief appellant, who was acting in pro. per., objected to such evidence.
At a hearing on the issue, the prosecutor indicated evidence of appellants prior burglaries was admissible as evidence of identity and of his specific intent to permanently deprive Rubin of her property. The trial court suggested to appellant that he might stipulate to the element of intent and avoid introduction of the prior crimes evidence. Appellant refused to stipulate. The trial court ruled the two prior burglaries were admissible to show intent.
At trial a police officer testified that on April 2, 1985, he was patrolling the Hillcrest area of San Diego. He heard a burglary alarm. As he approached the location of the alarm, he saw appellant in an alley. On the officers approach, appellant dropped objects he was holding in his hands. Appellant was detained. Some of the objects appellant dropped were papers bearing a nearby address. The officer went to that location, an apartment building, and discovered a burglary had been committed there within minutes of appellants apprehension. The officer determined the victim was an elderly woman who was present at the time of the burglary and was very upset. The officer testified the location of the 1985 burglary was close to the location of the burglary in the present case. No objection was made either to the testimony concerning the circumstances of the 1985 burglary or to the proximity of that burglary to the one in this case.
Immediately after the officers testimony, the jury was instructed the evidence was admissible for the limited purpose of proving the specific intent requirement that appellant entered with the intent to commit theft and to permanently deprive Rubin of her property.
2. Law
Evidence of prior criminal acts is admissible when relevant to prove some fact such as intent but not to prove the defendant carried out the charged crimes in conformity with a character trait. (Evid. Code, § 1101.) However, "evidence of uncharged misconduct `"is so prejudicial that its admission requires extremely careful analysis" and to be admissible, such evidence `"must not contravene other policies limiting admission, such as those contained in Evidence Code section 352." [Citation.] Thus, the probative value of the uncharged offense evidence must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury. [Citation.] On appeal, a trial courts ruling under Evidence Code sections 1101 and 352 is reviewed for abuse of discretion. [Citations.]" (People v. Lewis (2001) 25 Cal.4th 610, 637.)
3. Discussion
The trial court abused its discretion in admitting evidence of appellants 1985 burglary. As the trial court clearly recognized, there was no serious question in this case concerning the issue of the specific intent to enter to commit a theft or to permanently deprive the victim of her property. The evidence from the 1985 burglary, i.e., appellants discovery with property from a recently burglarized apartment, was no more indicative of an intent to enter to commit a theft or to permanently deprive the victim of her belongings than was the undisputed evidence of appellants possession of recently stolen property in the present case. The prior burglary occurred approximately 15 years before the present offense. The evidence of the prior burglary was highly prejudicial and only marginally probative. It should not have been admitted.
The error, however, was harmless. The case against appellant was very strong. Appellant was stopped moments after the burglary a short distance from the victims apartment. He was in possession of the suitcase taken from the apartment and was not only in possession of other property belonging to the victim but was wearing one of her rings. The victim had a good opportunity to observe the man leaving her apartment with her suitcase and shortly afterwards identified appellant as that man. Appellants defense that he found the suitcase on a bench in the area of the crime and assumed it was property abandoned by a homeless person was not worthy of belief. Appellant testified and was properly impeached with several prior theft related offenses. It is not reasonably probable that had the court excluded evidence of appellants 1985 burglary conviction he would have been acquitted of the charged offense. (See People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)
B. Prior Out-of-State Conviction
It was found true within the meaning of section 667, subdivision (a)(1), that appellant in a single prosecution had suffered three prior serious felony convictions for robbery in Illinois in 1974. The trial court struck the section 667, subdivision (a)(1), finding pursuant to section 1385 and, therefore, did not add to appellants 35 years to life sentence an additional five years pursuant to section 667, subdivision (a)(1). The San Diego District Attorney appeals, arguing the trial court had no discretion to strike appellants Illinois prior. Appellant concedes the point but argues the error was academic since his out-of-state crimes were not serious felonies under California law.
The three crimes were jointly tried and, therefore, result in a single enhancement. ( § 667, subd. (a)(1).)
1. Background
Among other enhancing recidivist allegations, it was found true that within the meaning of section 667, subdivision (a)(1), appellant was convicted in Illinois of robbery in 1974, of robbery in California in 1985 and of burglary in California in 1990.
Appellant argued his 1974 Illinois robbery convictions, which were based on a guilty plea, could not be used to enhance his term pursuant to section 667, subdivision (a)(1). He noted that an out-of-state prior could only be used to enhance under that section if it included all of the elements of a qualifying California offense. He argued that while a robbery in California requires the specific intent to permanently deprive the victim of his or her property, that requirement does not apply to the crime of robbery in Illinois. He further argued the record of his plea to the Illinois offense did not evidence any such intent to permanently deprive his victims of property.
The prosecutor responded that at the time of appellants plea to the Illinois robbery charge, the intent to permanently deprive was an element of robbery in that state. The prosecution argued that in any event the record of the Illinois proceeding established that appellants conduct in committing the robberies included the intent to permanently deprive his victims of property. The prosecutor also argued appellant was collaterally estopped from arguing the Illinois priors did not qualify under the section since in the appeal of another of his convictions, this court rejected appellants claim that his Illinois robbery convictions did not qualify as prior convictions within the meaning of section 667, subdivision (a)(1), since, unlike the crime of robbery in California, robbery in Illinois does not require a finding that the taking was against the victims will. The prosecutor also noted this court by written opinion denied appellants petition for habeas corpus in which we stated: "All elements of robbery in California were elements of the crime underlying petitioners prior Illinois conviction."
Based on this courts appellate and writ determinations rejecting appellants claim that his Illinois priors did not quality under section 667, subdivision (a)(1), and on the its finding that the record of the Illinois proceeding established that appellants conduct in committing those robberies included the intent to permanently deprive his victims of property, the trial court concluded the Illinois priors were serious felonies within the meaning of section 667, subdivision (a)(1).
The three crimes were jointly tried and, therefore, result in a single enhancement. ( § 667, subd. (a)(1).)
The trial court, however, pursuant to section 1368, struck the 667, subdivision (a)(1), enhancement based on the Illinois priors and, therefore, did not add to appellants term the five-year enhancement required by that section.
2. Discussion a. Peoples Appeal
The trial court struck pursuant to section 1385, the section 667.5, subdivision (a)(1), finding as to appellants 1974 Illinois robbery convictions. In her appeal the district attorney argues this was error.
When a serious felony enhancement is pleaded and found true, it must be imposed. This is so since statutorily the trial court lacks discretion to strike it. ( § 1395, subd. (b); People v. Turner (1998) 67 Cal.App.4th 1258, 1269; People v. Valencia (1989) 207 Cal. App. 3d 1042, 1046, 255 Cal. Rptr. 180.) Appellant concedes the error.
b. Appellants Contentions
While conceding that a trial court may not strike pursuant to section 1385, a serious felony enhancement, appellant argues his 1974 Illinois robbery convictions did not qualify under section 667, subdivision (a)(1), as such an enhancement.
Section 667, subdivision (a)(1), provides a five-year enhancement for any defendant convicted of a serious felony who previously was convicted of a serious felony in this state or of any offense in a another jurisdiction which includes all the elements of such a serious felony. In this case appellant was convicted of residential burglary. That crime is a serious felony. ( §§ 667, subd. (a)(4), 1192.7, subd. (c)(18); see also § 668.) The question is whether his Illinois robbery was a serious felony.
Robbery as defined in California law is a serious felony. (§ 1192.7, subd. (c)(19).) Appellant argues an Illinois robbery is not since it does not include all the elements of a robbery in California. Specifically, he argues that unlike a robbery in this state, robbery in Illinois does not require that the defendant specifically intended to permanently deprive the victim of his or her property. (Compare People v. Davis (1998) 19 Cal.4th 301, 307, 965 P.2d 1165 with People v. Banks (1979) 75 Ill. 2d 383, 388 N.E.2d 1244, 1246-1248, 27 Ill. Dec. 195.)
Appellant acknowledges this is not dispositive since even though an out-of-state offense may not require all the elements of a comparable California crime, a trier of fact may conclude, based on the entire record of the proceedings leading to imposition of the judgment on the prior conviction, that the defendants conduct satisfied all the elements of the California offense. (People v. Riel (2000) 22 Cal.4th 1153, 1204, 998 P.2d 969; People v. Myers (1993) 5 Cal.4th 1193, 1195, 858 P.2d 301.) Appellant argues the record does not support such a finding here.
The Attorney General asserts the trial court properly concluded that appellant, based on prior decisions by this court, was estopped from arguing that his Illinois robbery conviction was not a serious felony within the meaning of section 667.5, subdivision (a)(1).
"Collateral estoppel bars relitigation of an issue decided at a previous trial if (1) the issue necessarily decided at the previous trial is identical to the one which is sought to be relitigated; (2) the previous trial resulted in a final judgment on the merits; (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the prior trial. [Citation.]" (People v. Hogue (1991) 228 Cal. App. 3d 1500, 1504, 279 Cal. Rptr. 647.) The prosecution may assert the doctrine in criminal cases. (People v. Ford (1966) 65 Cal.2d 41, 50-51, 52 Cal. Rptr. 228, 416 P.2d 132; Gutierrez v. Superior Court (1994) 24 Cal.App.4th 153, 156-157.) The final resolution of an issue in a habeas corpus proceeding can collaterally estop a party from contesting that issue in a later case. (Younan v. Caruso (1996) 51 Cal.App.4th 401, 411-413.)
The trial court based it conclusion that appellant was collaterally estopped in part on an April 21, 1992, order of this court summarily denying a petition for habeas corpus filed by appellant. In apparent response to a claim that his Illinois robbery conviction was not a serious felony within the meaning of section 667.5, subdivision (a)(1), we stated: "All elements of robbery in California were elements of the crime underlying petitioners prior Illinois conviction."
We take judicial notice of our record in that habeas corpus proceeding and note that no order to show cause was filed. Summary denial of writs even when accompanied by brief explanatory comments are not formal opinions of this court, do not establish the law of the case and have no collateral estoppel effect. (See Kowis v. Howard (1992) 3 Cal.4th 888, 894-895, 838 P.2d 250; People v. Pacini (1981) 120 Cal. App. 3d 877, 884-885, 174 Cal. Rptr. 820.)
Pursuant to the Peoples request we have taken judicial notice of docket entries in California Supreme Court case Nos. S027155 and S033844. In S027155 appellant filed a petition for habeas corpus in the California Supreme Court on June 15, 1992, i.e., approximately three months after this courts denial of his habeas corpus petition. The court issued an order to show cause returnable before the San Diego County Superior Court. The court ordered the Director of the Department of Corrections to show cause why an enhancement based on appellants Illinois robbery conviction, considered by this court in both appellants appeal and petition for habeas corpus, should not be stricken. The court cited Illinois authority indicating the court was concerned with whether the intent to permanently deprive was an element of robbery in Illinois. Nothing in the record on appeal or submitted by the Attorney General indicated the outcome of that superior court proceeding.
The docket entries for No. S033844 show appellant filed a petition for habeas corpus in the California Supreme Court on July 13, 1993. That petition was summarily denied. Nothing in the record on appeal or submitted by the Attorney General indicates the nature of appellants petition.
This limited documentation is of no help in resolving the collateral estoppel issue raised in this case.
The trial court also based its conclusion that appellant was collaterally estopped from contesting whether his Illinois robbery was a serious felony in part on our 1991 opinion in another of appellants cases. In that case appellant asserted his Illinois robbery was not a serious felony because unlike California Illinois did not require that the underlying taking be against the victims will. After a review of Illinois law, we concluded the crime of robbery in Illinois did require that element.
In the present case, appellant again asserts his Illinois robbery was not a serious felony. He does so based on the claim that while California law requires the act be committed with the specific intent to permanently deprive the victim of property, Illinois law does not. As we will explain we agree.
In order for the resolution of an issue in a prior proceeding to collaterally estop reconsideration of that issue in a later case, the issue previously decided must be identical to the issue presented. "Under what circumstances is a matter to be deemed decided by the prior judgment? Obviously, if it is actually raised by proper pleadings and treated as an issue in the cause, it is conclusively determined by the first judgment. But the rule goes further. If the matter was within the scope of the action, related to the subject-matter and relevant to the issues, so that it could have been raised, the judgment is conclusive on it despite the fact that it was not in fact expressly pleaded or otherwise urged. The reason for this is manifest. A party cannot by negligence or design withhold issues and litigate them in consecutive actions. Hence the rule is that the prior judgment is res judicata on matters which were raised or could have been raised, on matters litigated or litigable. In Price v. Sixth District [(1927)] 201 Cal. 502, 511, 258 P. 387, this court said: "But an issue may not be thus split into pieces. If it has been determined in a former action, it is binding notwithstanding the parties litigant may have omitted to urge for or against it matters which, if urged, would have produced an opposite result . . . . This principle also operates to demand of a defendant that all of its defenses to the cause of action urged by the plaintiff be asserted under the penalty of forever losing the right to thereafter so urge them." [Citation.]" ( Warga v. Cooper (1996) 44 Cal.App.4th 371, 377-378.)
The issue of whether appellants Illinois prior was a serious felony in California was considered in appellants 1991 appeal before this court. The argument now asserted by appellant claiming that his Illinois prior was not a serious felony under California law, while not specifically asserted in that appeal, was within the scope of the action, related to the subject matter and relevant to the issue. Since it could have been raised, the prior adjudication is conclusive on it despite the fact that it was not expressly urged.
The trial court correctly found that appellant was estopped from asserting his Illinois prior was not a serious felony under our law.
Even if we were to reach the issue and agree that the intent to permanently deprive is not a element of robbery under Illinois law, we would not reverse since the trial court properly found appellants robberies in that state included the intent to permanently deprive the victims of property. (See People v. Riel, supra, 22 Cal.4th at pp. 1204-1206.)
The trial courts ruling striking the 667, subdivision (a)(1), finding based on the Illinois robberies is reversed. The matter is remanded to the trial court for resentencing. In all other respects the judgment is affirmed.
KREMER, P. J., OROURKE, J., We Concur.