Unpublished Disposition, 930 F.2d 26 (9th Cir. 1991)

MEMORANDUM^** 

Donald Allen Bridge filed a petition for a writ of habeas corpus in district court under 28 U.S.C. § 2254 challenging California's enhancement of his prison sentence for a prior serious felony conviction. The district court dismissed the petition on the ground that jurisdiction was lacking because no federal question was presented.¹  We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm on alternative grounds. See Marino v. Vasquez, 812 F.2d 499, 508 (9th Cir. 1987).

FACTS

In 1979, Bridge pleaded guilty to second-degree burglary and received a two-year prison sentence. This term has been served in full. In 1985, Bridge was charged and convicted of first-degree burglary. He was sentenced to six years in prison plus a five-year prior serious felony enhancement for the 1979 conviction.

Bridge appealed his sentence enhancement to the California Court of Appeal. He contended his 1979 conviction was not "serious" within the meaning of California's habitual offender statute.²  Bridge argued the sentencing court erred when it went "behind the record" to determine whether the 1979 conviction was "serious." Following California law, the State Court of Appeal agreed and struck the five-year enhancement.

The California Supreme Court granted the state's petition for review. That court ordered the case transferred back to the Court of Appeal for reconsideration in light of the California Supreme Court's decision in People v. Guerrero, 44 Cal. 3d 343, 748 P.2d 1150, 243 Cal. Rptr. 688 (1988).³  On reconsideration, the State Court of Appeal concluded that Bridge's 1979 second-degree burglary conviction was a "serious" felony within the meaning of California Penal Code Sec. 667(a) and upheld his five-year sentence enhancement.

In his habeas petition in the district court, Bridge alleged that as applied to him, both section 667 and the change in California law wrought by the Guerrero decision are ex post facto laws and cannot be used to enhance his sentence. He also argued the application of Guerrero to his case violates the fifth and fourteenth amendments, and that in any event, his 1979 conviction is invalid because he was not advised of the consequences of his guilty plea.⁴  The district court dismissed Bridge's petition concluding the relief sought was based solely on an alleged error of state law, and therefore, there was no subject matter jurisdiction. Bridge appeals.

DISCUSSION

The decision whether to grant or deny a petition for habeas corpus is reviewed de novo. United States v. Popoola, 881 F.2d 811, 812 (9th Cir. 1989).

Bridge argues that application of section 667 to his 1979 conviction violates the ex post facto clause of the United States Constitution.⁵  A law violates the ex post facto clause only if it: 1) punishes as criminal an act which was innocent when committed; 2) makes a crime's punishment greater than when the crime was committed; or 3) deprives a person of a defense available at the time the crime was committed. Collins v. Youngblood, --- U.S. ----, 110 S. Ct. 2715, 2719, 111 L. Ed. 2d 30 (1990).

We reject Bridge's argument. The enhanced sentence he complains of was imposed as punishment for his 1985 burglary conviction. Section 667, which specified this enhancement, was enacted as part of Proposition 8 by initiative in California in 1982. Bridge's enhanced sentence was "attributable to [his] status as a repeat offender and [arose] as an incident of the [1985] offense rather than constituting a penalty for the prior offense." In re Foss, 10 Cal. 3d 910, 922 (1974).

We also reject Bridge's argument that the application of Guerrero to validate his 1985 sentence enhancement constituted an ex post facto violation. In a procedurally similar case, United States v. Sorenson, 914 F.2d 173 (9th Cir. 1990), cert. denied, 59 U.S.L.W. 3563 (1991), the defendant Sorenson was convicted of burglary by a United States district court and received a sentence enhancement under a provision of the Armed Career Criminal Act ("Act"). Sorenson appealed the enhancement, and we reversed based on our interpretation of Oregon's burglary statute. The government petitioned for a rehearing which we deferred pending the Supreme Court's decision in Taylor v. United States, --- U.S. ----, 110 S. Ct. 2143, 109 L. Ed. 2d 607 (1990). Following Taylor we granted rehearing in Sorenson and affirmed the district court's judgment which permitted sentence enhancement under the Act. We held there was no retroactive application of Taylor and no ex post facto issue in the case. Sorenson, 914 F.2d at 174.

In the present case, the state trial court concluded that Bridge's 1979 conviction for second-degree burglary constituted a "serious" felony within the meaning of section 667. Initially the California Court of Appeal reversed Bridge's sentence enhancement, but upon reconsideration in light of Guerrero, it upheld the enhancement. Bridge's sentence was subject to reconsideration and was reconsidered when Guerrero was decided. In Sorenson, Sorenson's enhanced sentence was subject to reconsideration pending a petition for rehearing. When Taylor was decided, we reconsidered our previous decision and affirmed Sorenson's sentence. In doing so we stated: "Affirming the district court judgment now imposes nothing new upon Sorenson. His original enhancement stands. There is no ex post facto law issue in this case." Sorenson, 914 F.2d at 174. The same is true in the present case. No new sentence has been imposed on Bridge as a result of the California Court of Appeal's reconsideration of his sentence enhancement in light of Guerrero.

We also conclude that Bridge's due process and equal protection arguments lack merit. In Guerrero, the California Supreme Court did not create a new sentencing provision; it merely provided trial courts with broader discretion to determine whether a defendant's prior burglary conviction was a "serious" felony. Guerrero, 44 Cal. 3d at 345. Furthermore, following California's initiative enactment of Proposition 8 in 1982, which included the sentence enhancement provision of section 667, Bridge had fair notice of the consequences should he be convicted of another serious felony.

Bridge's third argument concerning the validity of his 1979 plea agreement is meritless as well. Courts are only required to inform defendants of the direct, rather than the collateral, consequences of plea agreements. Torrey v. Estelle, 842 F.2d 234, 235 (9th Cir. 1988). In determining whether a particular consequence is direct or collateral, the court should look to the result of the plea and determine its effect on defendant's punishment. Id. at 236.

Direct consequences include results such as the imposition of a mandatory special parole term and the maximum punishment under the law. Id. Collateral consequences, on the other hand, include results such as consecutive sentences and possible parole revocation. Id. We have held that not being informed of the possibility of sentence enhancement for a prior conviction constitutes a collateral consequence. See United States v. Garrett, 680 F.2d 64, 65 (9th Cir. 1982); see also United States v. Brownlie, 915 F.2d 527, 528 (9th Cir. 1990) (the possibility that the defendant will be convicted of another offense in the future and will receive an enhanced sentence based on an instant conviction is not a direct consequence of a guilty plea). Based on these decisions, the fact that Bridge did not know when he pleaded guilty in 1979 that his conviction might possibly result in the enhancement of a sentence should he be convicted of a subsequent crime does not render the earlier conviction invalid.

We affirm the district court's denial of Bridge's habeas corpus petition.

AFFIRMED.