Prior Residential Burglary
Category > Prior Residential Burglary
Defendant's child molest conviction in Nebraska qualified as a serious felony under section 667, subd.(a), but because the elements were different, did not qualify him as a habitual sexual offender under section 667.71.Defendant's prior child molest conviction in Nebraska served as the basis of a serious felony enhancement under Penal Code section 667, subd.(a), as well as a habitual sexual offender finding under Penal Code section 667.71, subds.(c)(4) and (d). Defendant argued reversal of the enhancements was required because the Nebraska convictions did not contain all of the elements of section 288, specifically it did not require a specific intent to arouse. Since the Nebraska statute did not contain an element of section 288, subd.(a), it is not a qualifying prior under the habitual sexual offender statute. To be a serious felony, however, it need not contain the same elements - it need only be lewd act on a person under 14. Violation of the Nebraska statute is a lewd act under section 1192.7. Moreover, the record of conviction showed the victim was four years-old. The offense therefore qualified as a serious felony under section 667, subd.(a).id: 17922
The trial court erred by looking beyond the fact of the 1992 second degree burglary convictions to find the offenses qualified as strike priors.Defendant received a 25 years-to-life sentence under the three strikes law because of two 1992 second degree burglary
convictions. Looking behind the fact of the convictions to the preliminary hearing transcripts, the trial court determined the prior burglaries were residential in nature and therefore qualified as serious felonies. However, defendant pled guilty to second degree burglaries which meant the crimes did not involve a residence. This was not a case where looking beyond the fact of the conviction resolved an ambiguity as to whether the prior conviction was for a serious felony. The court's finding was neither fair nor reasonable.id: 19288
Residential nature of a prior burglary not proved at trial may not be proved on appeal.The People offered no evidence at the trial on the priors that defendant's earlier burglary was of an inhabited dwelling. The People, on appeal, argued the residential nature of the burglary can be proved by appellate judicial notice or appellate fact finding. However, an appellate court may not on direct appeal from a judgment take judicial notice of or consider matters that were not considered by the trial court.id: 14006
Updated 2/23/2024Defendant need not seek a certificate of appealability to argue that SB 1393 was retroactive and the case should be remanded to allow the trial court to dismiss the prior serious felony enhancement.Defendant entered into a plea agreement for a specified term that included a prior serious felony enhancement under Penal Code section 667, subd.(a). While his appeal was pending, a new law went into effect permitting the trial court to dismiss the felony enhancement in furtherance of justice, which it was not previously authorized to do. Defendant was not required to obtain a certificate of probable cause to claim on appeal that the new law applied to him retroactively. Should the trial court dismiss the prior on remand, the court can withdraw its approval of the plea agreement. id: 26902
Complaint and other documents led to the conclusion the burglary was of a residence.Defendant was bound over on a complaint charging the burglary as that of a residence, the information alleged a residence, and the transcript indicated the plea was to the charge in the information. The chronology of these documents established that the prior burglary was of a residence.id: 14001
Court did not err in considering the probation report where the complaint and certified guilty plea established the residential nature of the prior burglary.Appellant argued the court erred in relying on the probation report to sustain the finding that the prior burglary was residential. Apart from whether the court properly considered the probation report as part of the record, the complaint charging appellant with a residential burglary together with appellant's certified guilty plea to the complaint constituted sufficient admissible evidence to establish the residential nature of the prior serious felony conviction.id: 14002
Defendant's change of plea stating that he entered the house with intent to steal supported the finding the prior burglary was of an inhabited dwelling.Defendant's change of plea stating that he entered a house with intent to steal, taken together with his earlier description of his role in the residential burglaries was sufficient to support the trial court's finding the burglary was of an inhabited dwelling.id: 14003
Preliminary hearing transcripts are admissible to prove the residential nature of prior burglary convictions.The trial court properly considered the transcripts of the preliminary hearings in determining the residential nature of the burglary underlying the prior conviction are part of the entire record of conviction and are admissible in evidence.id: 14004
Proof of a first degree burglary committed after the 1989 amendment to section 460 which added "an inhabited vessel to the offense, adequately proved the truth of the enhancement allegation under sections 667 and 1192.7, subdivision (c)(18).Proof that the defendant was convicted of a 1991 first degree burglary, a crime that may include burglary of an inhabited vessel, adequately proves the truth of a serious felony enhancement allegation as defined by Penal Code section 1192.7, subdivision (c)(18) based upon a previous conviction for burglary of an inhabited dwelling.id: 14005
Transcript of the change of plea hearing was properly used to determine the residential nature of the prior burglary conviction.In determining one of defendant's convictions a serious prior felony, the court relied only on the transcript of the change of plea proceeding where defendant answered yes when asked by the court if he pled guilty to burglary of a residence. Neither the change of plea form, sentencing transcript, nor the abstract of judgment indicated whether the burglary involved a residence, qualifying it as a serious felony under Penal Code section 667. The reporter's transcript of the change of plea hearing was part of the record and could be used to prove the residential nature of the prior burglary. The admission that he burglarized a residence was made in direct response to the court's questioning and was sufficiently reliable to satisfy any hearsay concerns.id: 14007
There is no judicial discretion to strike a prior when the defendant is an addict or in danger of becoming one.Appellant argued the prohibition which prevents the striking of Penal Code section 667 enhancements under section 1385 applies only in cases where the defendant is actually sentenced to prison on the underlying offense, and, thus, that the court has the authority to strike a section 667 enhancement for purposes of rehabilitation, and make a narcotics addict available for CRC eligibility. However, the court held there is no judicial discretion to strike a prior serious felony when the defendant is an addict or in danger of becoming one.id: 13822
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Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245