P. v. Gunn

 

 

 

 

 

 

 

 

 

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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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)

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>

THE PEOPLE,                           Plaintiff and Respondent,               v.   DENNIS WAYNE GUNN,                           Defendant and Appellant.

C071862   (Super. Ct. No. NCR83836)

 

 

 

            Pursuant to
a plea bargain, defendant Dennis Wayne Gunn pleaded guilty to one count of href="http://www.fearnotlaw.com/">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 California.  We agree with defendant and shall reverse the
trial court’s order that the three-year term be served in href="http://www.fearnotlaw.com/">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 href="http://www.mcmillanlaw.com/">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

while in a building or in immediate flight therefrom he:  [¶] 
(a) Is armed with a burglar’s tool as defined in ORS 164.235 or a deadly
weapon; or  [¶]  (b) Causes or attempts to cause physical
injury to any person; or  [¶]  (c) Uses or threatens to use a dangerous
weapon.”

            Former ORS
section 164.215 defined second degree burglary as follows:  “A person commits the crime of burglary in
the second degree if he enters or remains unlawfully in a building with intent
to commit a crime therein.”

            Pursuant to
Oregon case law, “a person is
guilty of burglary not only when he enters a building with the intent to commit
a crime, but when he enters and then remains after having formed the intent to
commit a crime.  The crime committed
therein is the object of the burglary even though it may not have been the
intention of the defendant when he entered the dwelling.”  (State
v. Papineau (1981) 53 Or.App. 33, 38 [630 P.2d 904, 907].)

            At the
sentencing hearing, defendant argued there were many ways one could violate Oregon’s
first degree burglary statute without committing a burglary under California
law.  The People responded:  “We have obtained a copy of the indictment
referencing Mr. Gunn, and the language in it is:  Did unlawfully and knowing enter and remain
in a building, to wit, a dwelling located at, gives the location, with the
intent to commit the crime of theft therein. 
And that’s the allegation of the indictment to which he pled guilty, and
it’s burglary in the first degree.  So it
would appear that certainly in 1977 the Code did in fact comport without
ours.” 

            Because
there is no indication in the record that the indictment, transcript of
defendant’s plea, or the factual basis for the plea was ever entered into
evidence before the court, there is no evidentiary support for the prosecutor’s
averments.  Here, it is clear the Oregon
first degree burglary statute could be violated in ways which would not violate
California’s first degree
burglary statute.  For example, the Oregon
statute would be violated if the defendant formed the intent to commit theft
after he entered the dwelling.  Without
evidence showing the precise manner in which defendant violated the Oregon
burglary statute, the evidence is insufficient to support a factual finding
that his Oregon first degree
burglary was also a first degree burglary in California.

Disposition

            The trial
court’s order that defendant serve his three-year term in state prison is
reversed.  The matter is remanded to the
Tehama County Superior Court for a redetermination of whether defendant
qualifies to serve his sentence in county jail. 
In all other respects, the judgment is affirmed.

 

 

 

                                                                                              HULL                           , Acting P. 
J.

 

 

 

We concur:

 

 

 

          ROBIE                          ,
J.

 

 

 

          MURRAY                    , J.