People v. Lee

Opinion

LOW, P. J.

A person guilty of second degree burglary may not be sentenced to an additional five years in prison because he suffered a prior robbery conviction. Second degree burglary is not a "burglary of a residence" and is not a "serious felony" as defined in Penal Code sections 667, subdivision (a) and 1192.7, subdivision (c).

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On November 30, 1981, defendant Darryl Dominguez Lee was convicted of robbery, in violation of section 211. He received a suspended sentence of five years and was placed on probation. On June 8, 1982, Proposition 8 was approved by the voters, adding section 667 and other matters.

Defendant was arrested on September 28, 1982, leaving Rosemarie Lemon’s Rohnert Park house in possession of jewelry belonging to Lemon.

A preliminary hearing was held on the charges that defendant violated section 459, burglary, and was previously convicted of a serious felony,

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robbery, pursuant to sections 667, subdivision (a) and 1192.7, subdivision (c). Defendant was held to answer.

In the superior court, the prosecution and the defendant agreed to submit the matter on the preliminary hearing transcript and on documentary evidence of the previous robbery conviction. The prosecutor and defense counsel also stipulated that defendant was charged with second degree burglary. (§ 460, subd. 2.) The court found defendant guilty of second degree burglary, and found true that defendant had been convicted of a serious felony, robbery, within the meaning of sections 667, subdivision (a) and 1192.7, subdivision (c). On December 14, 1982, defendant’s probation on the robbery conviction was revoked and the five-year suspended sentence was ordered executed.

On January 14, 1983, defendant was sentenced to eight months in prison for the burglary (one-third of the middle term) to be served consecutive to the five years principal term for robbery, and five years consecutive for the conviction of a serious felony, a total of ten years and eight months.

We consider the issue of whether defendant’s conviction of second degree burglary together with the previous conviction of robbery trigger the application of section 667. Section 667 reads in part: “(a) 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 . . . . [K] (d) As used in this section ‘serious felony’ means a serious felony listed in subdivision (c) of Section 1192.7.” Thus, both the offense for which the defendant stands convicted and the previous offense must be “serious felonies” to trigger the statute.