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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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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, 

 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 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 
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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 
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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.