Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura No. 2004045971, Bruce A. Clark, Judge
David L. Paschall, in pro. per.; California Appellate Project, Jonathan B. Steiner, Executive Director, Richard B. Lennon, Staff Attorney, for Petitioner.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Rama R. Maline, Deputy Attorney General, for Respondent.
PERREN, J.
David L. Paschall pleaded guilty to petty theft with a prior conviction (Pen. Code, § 666) and admitted that he had suffered a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). He was sentenced to 32 months in state prison, consisting of the low term of 16 months doubled for the strike prior. He subsequently filed a petition for a writ of habeas corpus contending that his trial attorney provided constitutionally ineffective assistance of counsel by advising him to admit that his 1980 second degree burglary conviction qualified as a strike. We issued an order to show cause, and now deny the petition.
Further statutory references are to the Penal Code.
FACTS AND PROCEDURAL HISTORY
On November 9, 2004, Paschall was apprehended after he was seen stealing a wallet from an 87-year-old woman's purse when she left it unattended in a shopping cart. He was subsequently charged with petty theft with a prior conviction and misdemeanor theft from an elder or dependent adult (§ 368, subd. (d).) As to the petty theft with a prior count, it was further alleged that he had suffered a burglary conviction in 1980 that qualified as a strike.
Paschall initially pleaded guilty to the petty theft with a prior count and admitted the truth of the strike prior, but was allowed to withdraw his plea. On February 8, 2006, Paschall again pleaded guilty to the petty theft with a prior count and admitted the prior. In exchange for his plea, the section 368, subdivision (d) count was dismissed.
DISCUSSION
Paschall contends that his trial attorney provided constitutionally ineffective assistance of counsel by advising him to admit that his 1980 second degree burglary conviction qualified as a strike. According to Paschall, second degree burglaries no longer qualify as strikes as a matter of law since the three strikes law was amended in 2000 to define only "burglary of the first degree" as a serious felony. (§ 1192.7, subd. (c)(18).)
Paschall's claim was expressly considered and rejected in People v. Garrett (2001) 92 Cal.App.4th 1417. In Garrett, the court recognized that second degree burglaries committed before 1982 may still qualify as strikes, notwithstanding the 2000 amendment to the three strikes law. Prior to 1982, commission of the crime at night was an essential element of burglary. (Id., at p. 1423.) "The original version of section 1192.7(c)(18) listed 'burglary of a residence' as a serious felony. At that time, first degree burglary was defined in section 460, subdivision 1, as the nighttime burglary of an inhabited dwelling or trailer coach, or the inhabited portion of any building. [Citations.] [¶] The nighttime requirement for first degree burglary was eliminated from section 460, subdivision 1, in 1982. [Citations.] Thereafter, the question arose whether a residential burglary which occurred in the daytime prior to the 1982 change qualified as a serious felony conviction under section 1192.7(c)(18) for purposes of the five-year sentence enhancement authorized by section 667, subdivision (a). The Supreme Court found the intent of the electorate was to treat all residential burglaries as 'serious' felonies and concluded that section 1192.7(c)(18) referred '"not to specific criminal offenses, but to the criminal conduct described therein."' [Citation.]" (Ibid.) "Since the definitions of burglary as a crime and burglary as a prior serious felony were not coextensive, the mere fact that a defendant had been convicted of burglary did not resolve the question whether the prior conviction was for a serious felony. The Supreme Court determined that, to resolve this ambiguity, the trier of fact could look beyond the fact of the prior burglary conviction to the entire record of the conviction to determine whether the prior conviction was for a serious felony, in other words, whether it was a residential burglary. (People v. Guerrero (1988) 44 Cal.3d 343, 354-355). 'Such a rule is both fair and reasonable,' declared the court. 'To allow the trier of fact to look at the entire record of the conviction is certainly reasonable: it promotes the efficient administration of justice and, specifically, furthers the evident intent of the people in establishing an enhancement for "burglary of a residence" – a term that refers to conduct, not a specific crime. . . . ' [Citation.]" (People v. Maestas (2006) 143 Cal.App.4th 247, 251.)
After analyzing the various amendments to the three strikes law, the court in Garrett reasoned: "Proposition 21 changed subdivision (c)(18) of section 1192.7 from a 'complete[] "duplicati[on of] the definition of first degree burglary"' [citation] into a reference to the crime by degree. Before 1982, when 'burglary of a residence' was a serious felony but section 460, subdivision 1, defined first degree burglary as the nighttime burglary of an inhabited dwelling, '[t]he upshot . . . [wa]s that the line between a first and second degree burglary did not match the line between a serious and nonserious felony for purposes of section 667. . . . In order to give retroactive effect to the enhancement provisions of section 667, subdivision (c)(18) of section 1192.7 was interpreted as "referring not to specific criminal offenses, but to the criminal conduct described therein . . . ." ' [Citation.]" (People v. Garrett, supra, 92 Cal.App.4th at p. 1431.) Because the 2000 amendment to section 1192.7, subdivision (c)(18) does not refer to the statute defining first degree burglary (§ 460, subd. (a)), and the electorate and the Legislature have indicated that they know how to require the violation of a specific statute when that is their intent, the court "interpret[ed] the language chosen as evidencing a desire to continue providing additional punishment for pre-1983 'conduct, not a specific crime' [citation] as well as post-1982 residential burglaries, and to obviate the need to amend section 1192.7(c)(18) every time section 460, subdivision (a) is altered." (Id., at p. 1432.)
Accordingly, the 2000 amendment to the three strikes law did not prevent the trier of fact from looking to the entire record of conviction to determine whether Paschall's 1980 second degree burglary conviction qualified as a strike. People v. Maestas, supra, 143 Cal.App.4th 247, which was cited in the order to show cause, is inapposite because it addressed the effect of the 2000 amendment on prior second degree burglary convictions alleged as strikes that occurred after 1982, i.e., those in which the residential nature of the crime is coterminous with the degree.
Paschall also contends that even if Garrett applies, "[i]f petitioner's trial counsel had investigated the documentation regarding his prior conviction, as the attorney general did following this Court's issuance of the order to show cause, she would have found the same paperwork that the attorney general found, namely the change of plea form and the probation officer's report." There has been no showing, however, that the reporter's transcript of the preliminary hearing was unavailable. (See People v. Reed (1996) 13 Cal.4th 217, 223-229 [recognizing that preliminary hearing transcripts are part of the "entire record of conviction" in proving the nature of a prior conviction].) Regarding Paschall's incriminatory statements in the probation report, although he correctly notes that our Supreme Court has recently held that such statements are inadmissible to prove that a prior conviction qualifies as a serious felony (People v. Trujillo (2006) 40 Cal.4th 165, 180-181), the law in effect when Paschall was convicted was to the contrary. (People v. Mobley (1999) 72 Cal.App.4th 761, 795-796, overruled in Trujillo, supra, at p. 181, fn. 3; People v. Monreal (1997) 52 Cal.App.4th 670, 674-680, overruled in Trujillo, supra, at p. 181, fn. 3.) Paschall has therefore failed to meet his burden of establishing that his trial attorney's performance was deficient and that he was prejudiced thereby. (Strickland v. Washington (1984) 466 U.S. 668, 687.)
The order to show cause is discharged and the petition for writ of habeas corpus is denied.
We concur: YEGAN, Acting P.J. COFFEE, J.