Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF018390, Judith C. Clark, Judge.
Melissa Hill, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil Gonzalez, Supervising Deputy Attorney General, and Andrew Mestman, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI J.
Defendant pled guilty to one count of burglary (Pen. Code, § 459) (count 1); one count of attempted vehicle theft (Pen. Code, § 664; Veh. Code, § 10851, subd. (a)) (count 2); five counts of receiving stolen property (Pen. Code, § 496, subd. (a)) (counts 3-7); one count of receiving a stolen motor vehicle (Pen. Code, § 496d, subd. (a)) (count 8); and one count of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)) (count 9). Defendant also admitted that he had suffered two prior serious felony convictions (Pen. Code, § 667, subd. (a)) and two prior strike convictions (Pen. Code, §§ 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)(a)).
After the trial court dismissed one prior strike conviction pursuant to Penal Code section 1385, defendant was sentenced to a total term of 23 years four months in state prison as follows: eight years on count 1; one year four months (consecutive) on each count (counts 2, 3, 4); four years (concurrent) on each count (counts 5, 6, 7, & 8); one year four months (consecutive) on count 9; and five years (consecutive) for each of the two prior serious felony convictions.
On appeal, defendant contends (1) the trial court erred by imposing two consecutive five-year enhancements for the two prior serious felony convictions, and (2) the sentence imposed on count 2 must be modified to eight months. We agree and will amend defendant’s sentence accordingly.
The details of defendant’s criminal conduct are not relevant to the limited issues defendant raises in this appeal. Those details are summarily set out in the respondent’s brief and we will not recount them here. Instead, we will recount only those facts that are pertinent to the issues we must resolve in this appeal.
A. Imposition of Two Consecutive Five-year Enhancements
The amended felony complaint alleged that defendant had suffered two serious felony prior convictions for first degree burglary within the meaning of Penal Code section 667, subdivision (a). Both of the serious felonies arose from convictions on or about October 18, 1995, in the Superior Court of San Diego County. At sentencing, over defense counsel’s objection and agreeing with the prosecutor, the trial court imposed two five-year enhancements for the two serious felony prior convictions. Defendant contends, and the People correctly concede, that imposition of both these enhancements was improper because the two convictions were not “brought and tried separately.” We also agree.
On March 6, 2008, a request for judicial notice was filed by defendant requesting this court take judicial notice of the records in case No. ECR11610 from the Superior Court of San Diego. The request for judicial notice is granted.
Penal Code section 667, subdivision (a)(1), provides that “any person convicted of a serious felony who previously has been convicted of a serious felony . . . shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately.” “‘[T]he requirement in [Penal Code] section 667 that the predicate charges must have been “brought and tried separately” demands that the underlying proceedings must have been formally distinct, from filing to adjudication of guilt.’” (People v. Wiley (1995) 9 Cal.4th 580, 585.) Our Supreme Court has concluded that when a defendant is sentenced pursuant to “the Three Strikes law, [Penal Code] section 667[, subdivision] (a)[,] enhancements are to be applied individually to each count of a third strike sentence.” (People v. Williams (2004) 34 Cal.4th 397, 405.)
In defendant’s case, the two convictions that were alleged to be serious prior felonies were both alleged to have the same conviction date and case number. Neither the prosecutor nor the court disputed these facts. Accordingly, we conclude that the two prior serious felonies were part of the same case. (See People v. Wiley, supra, 9 Cal.4th at p. 583.) Consequently, we conclude the trial court erred by finding two separate and distinct prior serious felony convictions because the felonies were not brought and tried separately and, therefore, only one of the prior serious felony allegations may remain.
B. Sentence on Count 2
Defendant also claims, and the People correctly agree, that the trial court erred in imposing one year four months on count 2, rather than eight months. We also agree.
Defendant pled guilty in count 2 to an attempted vehicle theft. (Pen. Code, § 664; Veh. Code, § 10851, subd. (a).) The sentence for an unsuccessful attempt to commit a crime is one-half the term of imprisonment prescribed upon a conviction of the offense attempted. (Pen. Code, § 664.) Hence, the penalty range for this offense is eight, 12, and 18 months (half of the range for the completed offense). (Ibid.) The trial court, however, selected the midterm of two years for this offense, which is the midterm for an actual completed vehicle theft. Therefore, the sentence on count 2 should be modified to one-third the midterm of 12 months, doubled to eight months, due to the prior strike conviction.
The penalty range for an actual violation of Vehicle Code section 10851, subdivision (a), is 16 months, two years, and three years. (Veh. Code, § 10851, subd. (a).)
II DISPOSITION
The judgment is modified to strike one of the prior serious felony enhancements and amend the sentence on count 2 to eight months (consecutive). Defendant’s total sentence should therefore be 17 years eight months. The trial court is directed to amend the abstract of judgment to reflect the modification and to send a copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: RAMIREZ P. J., HOLLENHORST J.