People v. Lee

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).

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, 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…