P. v. Gunn CA3

Filed 6/25/13 P. v. Gunn CA3 NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Tehama) ----

THE PEOPLE, C071862

Plaintiff and Respondent, (Super. Ct. No. NCR83836)

v.

DENNIS WAYNE GUNN,

Defendant and Appellant.

Pursuant to a plea bargain, defendant Dennis Wayne Gunn pleaded guilty to one count of grand theft (Pen. Code, § 487, subd. (a); unless otherwise stated, statutory references that follow are to the Penal Code). At sentencing, defendant was denied probation and sentenced to state prison for three years, that term to be served in state prison because the probation report showed he had a prior conviction for first degree burglary committed in Oregon in October 1977. On appeal, defendant contends the evidence is insufficient to establish that his first degree burglary conviction in Oregon also constituted a first degree burglary in

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California. We agree with defendant and shall reverse the trial court’s order that the three-year term be served in state prison.

FACTS AND PROCEEDINGS On January 17, 2012, remote feeds from video cameras at an elementary school in Tehama County showed defendant stealing four security cameras.

DISCUSSION

A state prison sentenced imposed for a violation of section 487, subdivision (a) is to be served in county jail, unless the defendant is disqualified for any reason set forth in section 1170, subdivision (h)(3), which includes having a current or prior serious or violent felony conviction in California or a prior out-of-state felony for an offense that would qualify as a serious or violent felony under California law. (§§ 489, subd. (b), 1170, subds. (h)(2), (h)(3).) “ ‘To qualify as a serious felony, a conviction from another jurisdiction must involve conduct that would qualify as a serious felony in California.’ [Citations.] To make this determination, the court may consider both the elements of the crime and the actual conduct as revealed by the record of conviction. [Citation.] A record of conviction includes an accusatory pleading and a defendant’s plea of guilty. [Citation.]” (People v. Washington (2012) 210 Cal.App.4th 1042, 1045.) In California first degree burglary is a serious felony. (§ 1192.7, subd. (c)(18) [“any burglary of the first degree”].) “The elements of first degree burglary in California are: (1) entry into a structure currently being used for dwelling purposes and (2) with the intent to commit a theft or a felony.” (People v. Sample (2011) 200 Cal.App.4th 1253, 1261.) In 1977 when defendant committed the first degree burglary in Oregon, Oregon Revised Statutes (ORS) section 164.225 defined first degree burglary as follows: “(1) A person commits the crime of burglary in the first degree if he violates ORS 164.215 [second degree burglary] and the building is a dwelling, or if in effecting entry or