6 Cal.App.4th 616 (1992) 7 Cal. Rptr.2d 866

THE PEOPLE, Plaintiff and Respondent,
v.
ALBERT HAYES, Defendant and Appellant.

Docket No. D012890.

Court of Appeals of California, Fourth District, Division One.

May 12, 1992.

*618 COUNSEL

David M. McKinney for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Harley D. Mayfield, Assistant Attorney General, Robert M. Foster and M. Howard Wayne, Deputy Attorneys General, for Plaintiff and Respondent.

[Opinion certified for partial publication.^[1]]

OPINION

WIENER, Acting P.J.

In 1987, a jury convicted defendant Albert Hayes of attempted murder. It also found two alleged prior serious felony enhancements, a 1972 Texas robbery conviction and a 1980 California residential burglary conviction, were true. (Pen. Code, §§ 667, subd. (a), 1192.7, subd. *619 (c)(19).)^[2] In an earlier opinion we reversed the judgment "insofar as it relate[d] to true findings on the two serious prior felony enhancements" because Hayes was denied his right to participate in that part of the trial involving the enhancements, but affirmed the judgment "[i]n all other respects." In the ensuing limited retrial, the jury found both priors were true. The court sentenced Hayes to an additional 10 years to be served consecutively to the previously imposed 12 years. Hayes again appeals. We affirm.

I

OUT-OF-STATE PRIOR CONVICTION

(1a), (2) (See fn. 3.) Hayes argues the court could not enhance his sentence on the basis of his earlier Texas robbery conviction because it does not constitute a serious felony within the meaning of sections 667 and 1192.7, subdivision (c)(19).^[3]

Section 667, subdivision (a) provides "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 ... a five-year enhancement for each such prior conviction...." (Italics added.) Section 667, subdivision (d) defines a serious felony as any felony listed in subdivision (c) of section 1192.7. Included in that list is robbery. (See § 1192.7, subd. (c)(19.) While section 667 does not require that the foreign offense correspond to the particular crime in California (see People v. Reynolds (1991) 232 Cal. App.3d 1528, 1533 [284 Cal. Rptr. 356]),^[4] the court below enhanced Hayes's sentence based upon a finding that Hayes's Texas robbery conviction included *620 all the elements of robbery under California law. Additionally, the parties here focus principally on robbery as the appropriate serious felony for purposes of enhancement. We therefore limit our discussion accordingly.

A.

(3) We first consider whether we may rely on the Texas information to which Hayes pled guilty to establish the elements of a California robbery were satisfied in this case. Hayes says we are limited to looking at the statutory elements of the prior offense and may not look to the specific facts underlying his previous conviction in determining whether the Texas offense would constitute a robbery under California law. Determining the correctness of Hayes's position, we examine three California Supreme Court decisions, People v. Crowson (1983) 33 Cal.3d 623 [190 Cal. Rptr. 165, 660 P.2d 389], People v. Alfaro (1986) 42 Cal.3d 627 [230 Cal. Rptr. 129, 724 P.2d 1154], and People v. Guerrero (1988) 44 Cal.3d 343 [243 Cal. Rptr. 688, 748 P.2d 1150].

In Crowson, the trial court imposed a one-year enhancement under section 667.5, providing for additional penalties for prior prison terms, on the basis of the defendant's previous federal drug conspiracy conviction. Unlike California's conspiracy statute (§ 184), federal law does not explicitly make commission of an overt act an element of the offense. The indictment to which the defendant pled guilty, however, specifically alleged two overt acts in support of the conspiracy charge. Rejecting the People's contention that such guilty plea established the defendant's federal conspiracy offense included all the elements of the corresponding California felony, the court held "enhancement is only permissible when the elements of the foreign crime, as defined by that jurisdiction's statutory or common law, include all of the elements of the California felony." (33 Cal.3d at p. 632, italics added.) In so ruling, the court relied upon (1) section 667.5's statutory language referring to a "specific crime as defined by law, and not simply to the actual conduct of the defendant" (33 Cal.3d at p. 633); (2) the unfairness inherent in giving "surplus" allegations in foreign allegations conclusive effect (id. at p. 634); and (3) a line of cases culminating in In re Finley (1968) 68 Cal.2d 389 [66 Cal. Rptr. 733, 438 P.2d 381], construing section 668, a parallel habitual offender statutory provision. (33 Cal.3d at pp. 633-634.)

Alfaro considered a similar issue with respect to a section 667 enhancement based upon a prior residential burglary conviction where the fact that a residence was involved was not an essential element of the offense. At the *621 time, section 667 permitted enhancement only when the prior burglary was of a residence. Relying on Crowson and dicta in People v. Jackson (1985) 37 Cal.3d 826 [210 Cal. Rptr. 623, 694 P.2d 736], Alfaro rejected the prosecution's attempt to prove the residential character of the prior burglary by defendant's guilty plea to a charging allegation that the burglary involved a residence. The court explained "the judgment in the [prior] burglary proceeding did not establish that defendant entered a residence. While the information so alleged, such entry was not an element of the crime." (Alfaro, supra, 42 Cal.3d at p. 636.) Reaffirming Crowson, the court emphasized "`the prosecution cannot go behind the record of the conviction ... to prove some fact which was not an element of the crime.'" (Id. at p. 636, quoting People v. Jackson, supra, 37 Cal.3d at p. 834.) The court further explicitly rejected the Attorney General's suggestion that the court "should at least permit proof based on the record in the court file." (Alfaro, supra, 42 Cal.3d at p. 635.)

Two years later, Guerrero addressed the identical issue presented in Alfaro — the defendant pled guilty or nolo contendre to a residential burglary allegation, where the type of structure was not an element of the offense. Responding to the Attorney General's request to reexamine Alfaro, the court initially noted Alfaro based its decision on Crowson which relied upon In re Finley, supra, 68 Cal.2d 389. After reviewing the Finley line of cases^[5], the Guerrero court determined such cases did not support Alfaro and explicitly overruled it. In so doing, the court adopted the rule that in imposing a section 667 enhancement, a court "may look to the entire record of the conviction" to determine the nature of a defendant's prior conviction. (Guerrero, supra, 44 Cal.3d at p. 355.) The court explained it is only where the record does not disclose "any of the facts of the offense actually committed," that a court must presume the prior conviction was for the least offense punishable. (Id. at p. 352; People v. Rhoden (1989) 216 Cal. App.3d 1242, 1256-1257 [265 Cal. Rptr. 355].) Applying these principles, Guerrero ruled the trial court properly reviewed an accusatory pleading and the defendant's plea of guilty or nolo contendere in determining whether the prior felony conviction constituted a "serious felony." (44 Cal.3d at pp. 345, 356.)

Following Guerrero, numerous courts have likewise upheld the trial court's reliance upon the contents in the file of a prior conviction to establish a particular element of a serious felony was adjudicated, despite the fact that the statute did not require such element to have been established. (See e.g. People v. Johnson (1991) 233 Cal. App.3d 1541, 1546-1548 [285 Cal. Rptr. 394]; People v. Harrell (1989) 207 Cal. App.3d 1439, 1444 [255 Cal. Rptr. *622 750]; People v. Batista (1988) 201 Cal. App.3d 1288, 1293-1294 [248 Cal. Rptr. 46]; see also People v. Skeirik (1991) 229 Cal. App.3d 444, 460-463 [280 Cal. Rptr. 175]; People v. Tuggle (1991) 232 Cal. App.3d 147, 153-156 [283 Cal. Rptr. 422].)^[6]

Notwithstanding Guerrero and its progeny, Hayes persists in arguing an underlying record of conviction may not be used to supply a missing element of a prior offense, relying upon People v. Reynolds, supra, 232 Cal. App.3d 1528 and People v. Crowson, supra, 33 Cal.3d 623. Hayes's reliance on these decisions is misplaced.

In Reynolds, supra, 232 Cal. App.3d 1528 the trial court looked to the information and guilty plea underlying the defendant's previous Missouri robbery conviction to determine whether intent to steal was an element of the offense. Finding such record review to be error, Reynolds explained "[b]ecause intent to steal was not an element of the crime in Missouri, the issue was neither raised nor resolved. It was not an adjudicated element, and the trial court should not have searched the record to find a basis for supplying the missing element." (Id. at p. 1535.) Relying upon the Finley-McVickers-Seeley line of cases, Reynolds thus interpreted Guerrero to mean a court is entitled to look to an information and guilty plea only to establish which of the statutory elements of the foreign crime were "actually adjudicated." (Ibid.)

We believe Reynolds misreads Guerrero. As noted earlier, Guerrero makes clear the court may look to the entire record of conviction to determine the substance of a prior foreign conviction, including to prove allegations which do not constitute elements of the crime. (See Johnson, supra, 233 Cal. App.3d 1541, 1546; Skeirik, supra, 229 Cal. App.3d at p. 462 [Guerrero "implicitly rejected the assertion of the dissent that facts contained in the information are not competent to prove allegations which do not constitute elements of the crime"]; see also Tuggle, supra, 232 Cal. App.3d at p. 155 ["A defendant may be bound to his or her admission of a [prior] charged crime ... even though some of the allegations in the charging document were not elements of the offense" citing Guerrero].) Significantly, Guerrero held the trial court "acted properly" in relying upon a plea to the charging allegations to supply a missing statutory element. (Guerrero, supra, 44 Cal.3d at p. 356.) That is precisely what the trial court did in this case. "If such evidence of conviction in Guerrero was sufficient to satisfy our Supreme Court, it is necessarily sufficient to satisfy us." (People v. Johnson (1989) 208 Cal. App.3d 19, 27 [256 Cal. Rptr. 16].)

*623 Moreover, aside from Guerrero's unequivocal language, we are unwilling to apply Reynolds's reasoning. The fact that intent to steal is not an element of a particular crime, does not mean the issue was "neither raised nor resolved." Rather, where a defendant enters a guilty plea constituting his voluntary admission he committed the acts alleged in the indictment, such plea unequivocally establishes the particular elements alleged were both raised and resolved.

We also reject Hayes's reliance on Crowson because we believe Crowson no longer retains validity after Guerrero with respect to the precise issue before us. (See Johnson, supra, 233 Cal. App.3d at p. 1547 ["In light of the discussion in Guerrero, we would have no difficulty concluding that the Crowson rule is no longer good law"]; Tuggle, supra, 232 Cal. App.3d at p. 156 ["Guerrero is admittedly somewhat at odds with cases such as ... Crowson ..."].) As set forth above, Guerrero explicitly overruled Alfaro. While it did not do so with respect to Crowson, Alfaro and Crowson were based upon almost identical principles. Guerrero's rejection of the Finley line of cases as supportive of Alfaro and the fact that Guerrero reached its decision over a vigorous dissent stressing its inconsistency with Crowson compels the conclusion that Crowson cannot logically control the circumstances of this case.

At oral argument, Hayes's counsel pursued his contention that Crowson was controlling, referring us to two recent Supreme Court decisions citing Crowson in dictum. (See People v. Kaurish (1990) 52 Cal.3d 648, 700 [276 Cal. Rptr. 788, 802 P.2d 278]; People v. Lang (1989) 49 Cal.3d 991 [264 Cal. Rptr. 386, 782 P.2d 627].) In Kaurish and Lang, however, the court merely held a "prior felony conviction" within the meaning of section 190.3, factor (c) includes any prior conviction which was a felony under the laws of the particular foreign jurisdiction, explicitly rejecting the defendants' arguments that it should apply Crowson's "least adjudicated elements" test. In so holding, the court did not reassert Crowson's validity or in any way limit the scope of Guerrero. Significantly, this case involves the identical code section (§ 667) as that in Guerrero (compare Crowson, supra, 33 Cal.3d 623 [§ 667.5]) and concerns the identical form of proof of prior conviction (guilty plea to charging allegation). Therefore, even if we were to accept Hayes's contention that Crowson remains viable after Guerrero, he fails to explain why it should apply here, where the more recent Supreme Court decision is almost directly on point. (See People v. Johnson, supra, 233 Cal. App.3d at pp. 1547-1548 [although "the Supreme Court has not explicitly overruled Crowson, and at least in dicta, continues to suggest that Crowson remains valid for some purposes.... we are bound to follow the more explicit pronouncements in Guerrero"].)

*624 Thus, contrary to Hayes's contention, in determining whether the elements underlying Hayes's Texas conviction would constitute a serious felony in California, we may look to the information and guilty plea as well as the particular elements of the offense.

B.

(1b) Applying the foregoing principles, we now examine whether Hayes's robbery conviction established all the elements of robbery under California law.

At the time of Hayes's alleged Texas robbery conviction, former article 1408 of the Texas Statutes defined robbery as follows: "if any person by assault, or violence, or by putting in fear of life or bodily injury, shall fraudulently take from the person or possession of another any property with intent to appropriate the same to his own use, he shall be punished ..." (Tex. Stat. Ann. art. 1408 (Vernon 1953).) The Texas indictment alleged that Hayes, on November 13, 1971, "did unlawfully and willfully make an assault upon the person of [the victim] and ... by said assault and by violence to the said [victim] and by putting the said [victim] in fear of life and bodily injury, did then and there fraudulently take from the person and possession, and without the consent and against the will of said [victim] fifty-six dollars ..." According to the Texas judgment, Hayes later pled "guilty [to] ... robbery as contained in the indictment...."

Section 211 defines robbery as "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." Hayes says the Texas statute, unlike section 211, does not require (1) asportation; (2) the property in question be taken from the person or immediate presence of the victim; or (3) the property be taken against the victim's will.

As set forth above, Hayes pled guilty to the allegation that he "did and there fraudulently take from the person and possession, and without the consent and against the will of said [victim] fifty-six dollars ..." Such facts establish (1) the asportation or carrying away element, as it has been interpreted under California law^[7]; (2) that Hayes took the money from the person of the victim; and (3) that he gained possession of the property against the victim's will.

*625 We therefore conclude Hayes's prior Texas conviction contained all the elements of robbery under California law, thereby permitting the court to enhance Hayes's sentence on the basis of such conviction.

C.

(4) We also reject Hayes's contention the trial court committed error by failing to reconsider his previously imposed 12-year sentence on the attempted murder offense. Hayes was not entitled to be resentenced on the underlying offense since the judgment was reversed only as to the truth of the prior convictions. (See People v. Jackson (1987) 189 Cal. App.3d 113 [234 Cal. Rptr. 293].) Our remand reopened only those sentencing issues pertaining to the prior convictions. Thus, while the court could not consider the previously imposed sentence, it was required to exercise its discretion to determine whether any mitigating circumstances support striking one or both of the enhancements.

II

MOTIONS FOR SELF-REPRESENTATION AND ADVISORY COUNSEL^[*]

.... .... .... .... .... .... .... .

DISPOSITION

Judgment affirmed.

Benke, J., and Nares, J., concurred.

A petition for a rehearing was denied June 5, 1992, and appellant's petition for review by the Supreme Court was denied August 13, 1992.

NOTES

[1] Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of part II.

[2] All statutory references are to the Penal Code unless otherwise specified.

[3] In reference to this argument we reject the Attorney General's contention that Hayes is precluded by the collateral estoppel doctrine from raising this issue. The Attorney General points out the trial court rejected Hayes's contention at his first trial, but that Hayes failed to raise the issue as error in his previous appeal. For the doctrine of collateral estoppel to apply, however, the issue in question must have been actually litigated and determined by a final judgment. (Grain Dealers Mutual Ins. Co v. Marino (1988) 200 Cal. App.3d 1083, 1088 [246 Cal. Rptr. 410]; see People v. Sims (1982) 32 Cal.3d 468, 484 [186 Cal. Rptr. 77, 651 P.2d 321].) As noted earlier, we reversed the judgment with respect to Hayes's earlier convictions on a specific ground and did not discuss other possible grounds which may have been relevant to this issue. Thus, because we did not reach those other issues they were not actually litigated and determined by a final judgment. Consequently our reversal of the judgment as it related to the true findings on the two serious felony enhancements reopened all issues pertaining to those prior convictions, not specifically analyzed and addressed. (See People v. Hogue (1991) 228 Cal. App.3d 1500, 1504-1506 [279 Cal. Rptr. 647].)

[4] As Reynolds explained "[u]nlike section 667.7, which requires that the foreign offense include `all of the elements of the particular felony as defined under California law' (§ 667.5, subd. (f), italics added), section 667 requires only that the foreign offense include `all of the elements of any serious felony' (subd. (a), italics added.)." (Reynolds, supra 232 Cal. App.3d at p. 1533.)

[5] The court identified Finley's predecessors to include In re McVickers (1946) 29 Cal.2d 264 [176 P.2d 40] and In re Seeley (1946) 29 Cal.2d 294 [176 P.2d 24].

[6] While many of these cases involved prior California convictions, their principles have been held applicable to prior out-of-state convictions. (See People v. Johnson, supra, 233 Cal. App.3d at p. 1547; People v. Rhoden, supra, 216 Cal. App.3d 1242, 1256-1257; People v. Reynolds (1989) 211 Cal. App.3d 382, 387, 390 [259 Cal. Rptr. 352].)

[7] The asportation requirement is satisfied by evidence of a very slight movement. (People v. Cooper (1991) 53 Cal.3d 1158, 1165 [282 Cal. Rptr. 450, 811 P.2d 742].) "Any removal of the article ... whereby the thief obtains possession and control of the property at least for a fraction of time is sufficient to constitute the element of carrying away." (People v. Nazzaro (1963) 223 Cal. App.2d 375, 381 [35 Cal. Rptr. 879]; accord People v. Scott (1985) 170 Cal. App.3d 267, 272 [215 Cal. Rptr. 618] [robbery is established as soon as there has been movement "however slight, of the property to the robber's dominion and control"].) "`Asportation ... may be fulfilled by wrongfully ... removing property from the ... control of the owner, ... even though the property may be retained by the thief but a moment.'" (People v. Pruitt (1969) 269 Cal. App.2d 501, 505-506 [75 Cal. Rptr. 125], quoting People v. Quiel (1945) 68 Cal. App.2d 674, 679 [157 P.2d 446].) The fact that Hayes admitted he did "take [fifty-six dollars] from the [victim]" establishes he removed the money from its rightful owner for at least a fraction of time. Thus, the asportation element has been established.

[*] See footnote, ante, page 616.