Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC898881.
McAdams, J.
Defendant appeals from the 21-year state prison sentence imposed following his pleas of no contest to three counts of robbery and prior conviction admissions. The sole issue on appeal is whether this court should reconsider its opinion in People v. Gonzales (1990) 220 Cal.App.3d 134 (Gonzales) and find that defendant’s prior serious felony convictions were not brought and tried separately, requiring the reduction of his sentence by five years. We decline to do so, and will affirm.
PROCEDURAL BACKGROUND
Defendant was charged in Santa Clara County Superior Court docket 164472 with the commission of an assault with a deadly weapon for the benefit of a gang occurring on October 31, 1992. He was charged in Santa Clara County Superior Court docket 165555 with accessory to mayhem for the benefit of a gang occurring on April 10, 1993. He was sentenced to county jail as a condition of probation in both cases on August 10, 1993.
On July 2, 2008, defendant pleaded no contest to three counts of second degree robbery. (Penal Code, §§ 211-212.5, subd. (c).) He also admitted that he had previously been convicted of (1) assault with a deadly weapon for the benefit of a criminal street gang, a strike, and a serious felony; (2) accessory to mayhem for the benefit of a criminal street gang, also a strike and a serious felony; and (3) possession of methamphetamine, for which he served a prior prison term. (§§ 245, subd. (a)(1), 186.22, subd. (b)(1), 667, subd. (a), 1170.12/667, subds. (b)-(i), 32; Health & Saf. Code, § 11377, subd. (a).)
Unless otherwise indicated, all subsequent statutory references are to the Penal Code.
On September 16, 2008, the court dismissed one of the two strike allegations pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The court then sentenced defendant to six years (the midterm of three years, doubled) on count 1; two years consecutive (one-third the midterm, doubled) on count 2, and two years consecutive (the same) on count 3, plus five years consecutive for each of the two prior serious felony convictions and one year consecutive for the prior prison term, for a total term of 21 years.
STATEMENT OF FACTS
The historical facts are drawn from the probation report and may be briefly summarized as follows.
Count 1: On January 4, 2008, defendant entered a Bank of the West branch in San Jose and presented a teller with a note which said: “Give me the money in the top drawer and nobody will get hurt.” Defendant fled the bank with the demand note and $2,460.00 in cash.
Count 2: On January 25, 2008, defendant entered a Washington Mutual Bank branch in San Jose and handed a teller a note which “instructed her to place all the money in an envelope and not to panic.” Defendant fled with $2,383.00 in cash.
Count 3: On March 7, 2008, defendant entered a Bank of America branch in Milpitas and handed a teller a note which said: “I have a gun. Quickly empty all your cash in the register into the bag and I will leave peacefully.” Defendant fled with $958.00 in cash.
DISCUSSION
The court sentenced defendant to two consecutive five years terms pursuant to section 667, subdivision (a), one for each of defendant’s prior serious felony convictions. Defendant acknowledges that under existing precedent, particularly this court’s 1990 opinion in Gonzales, defendant’s two prior serious felony convictions were “brought and tried separately” within the meaning of section 667, subdivision (a), and that the court correctly imposed a five-year term for each of his convictions. However, he urges this court to reconsider its decision in Gonzales and adopt the position taken by Justice Blease’s dissent in People v. Wagner (1994) 21 Cal.App.4th 729, 738-742 (Wagner), which would result in only one five-year enhancement for both prior convictions. For the reasons explained below, we decline to do so.
Section 667, subdivision (a) provides in pertinent part 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. The terms of the present offense and each enhancement shall run consecutively.” (Italics added.) In In re Harris (1989) 49 Cal.3d 131 (Harris), the California Supreme Court interpreted the italicized phrase “brought and tried separately” to mean “that the underlying proceedings must have been formally distinct, from filing to adjudication of guilt.” (Id. at p. 136.) The Harris court reasoned that the phrase used in section 667, subdivision (a) must have the same meaning as similar language used in a predecessor habitual criminal statute which the court, in People v. Ebner (1966) 64 Cal.2d 297, had interpreted as meaning that the “ ‘prior felony proceedings must be totally separate, not only during proceedings before trial but also as to those leading to the ultimate adjudication of guilt.’ ” (Id. at p. 304.) “As explained in Ebner, there is ‘no distinction between an adjudication of guilt based on a plea of guilt and that predicated on a trial on the merits.’ ” (Harris, at p. 135.) In Harris, the defendant had been charged in a single complaint with two counts of robbery. After he was held to answer, the district attorney filed two separate informations, each charging a single count. The defendant pleaded guilty to each information and was sentenced on each information in the same proceeding. The Harris court ruled that because the charges were made in a single complaint, they were not “brought... separately,” and therefore only one five-year enhancement should have been imposed. (Id. at p. 136.)
Subsequently, several courts of appeal, including this one, concluded on the basis of Harris that where convictions arose from unrelated counts or distinct accusatory pleadings and were not consolidated, the charges were “brought and tried separately” under section 667, subdivision (a), even if the defendant later negotiated a joint disposition for all of his or her separate cases, pleaded guilty to all of them in a single proceeding, or was sentenced on his or her separate cases in a single proceeding. (Gonzales, supra, 220 Cal.App.3d 134; People v. Thomas (1990) 219 Cal.App.3d 134; People v. Smith (1992) 7 Cal.App.4th 1184 (Smith); Wagner, supra, 21 Cal.App.4th 729 (maj. opn.).) Thus, in Gonzales we held that calendaring all or some of a criminal defendant’s cases for the same date and time does not “effect a ‘de facto’ consolidation of cases.” (Gonzales, at pp. 140-141.) “Obvious considerations of judicial efficiency call[] for that type of processing of the multiple cases of a single defendant.” (Smith, at p. 1192.)
In Wagner, the dissenting justice disagreed that a defendant is brought and tried separately on charges that originated in separate complaints but “[t]he pleas to both offenses were taken, both singly and jointly, in a single proceeding pursuant to a single plea bargain” and “[i]n addition the defendant was jointly sentenced for both offenses in a single proceeding.” (Wagner, supra, 21 Cal.App.4th at p. 739.) However, the following year, in People v. Wiley (1995) 9 Cal.4th 580, our Supreme Court cited Thomas, Gonzales, Smith, and the majority opinion in Wagner approvingly for the proposition that, “[a]s is demonstrated by the numerous decisions that have considered the proper application of the requirement that the prior charges be ‘brought and tried separately,’ resolution of this issue frequently depends upon the interpretation of complex and detailed provisions of California criminal procedure” as well as “some underlying facts that are relevant to the determination... such as the filing of charges either in a single complaint or multiple complaints....” (People v. Wiley, at p. 590.) On its own facts, the Wiley court concluded that where two informations were filed in the same county, court trials were conducted one day apart, and the informations bore nonsequential case numbers, even though the defendant was sentenced on both cases during the same court session, the trier of fact was entitled to infer that the two cases had originated in separate complaints and were thus “brought... separately” within the meaning of section 667, subdivision (a). (People v. Wiley, at pp. 593-594.) On its own motion, the Wiley court also took judicial notice of the separate complaints in the municipal court files. (Id. at p. 594.) The Wiley court reversed that portion of the Court of Appeal’s judgment that struck “one of the two 5-year enhancements imposed by the trial court pursuant to section 667(a)(1).” (Id. at p. 595.) We conclude from the foregoing that the correct rule is that charges are “brought and tried separately” under section 667, subdivision (a) when the charges are brought in separate complaints, even though the defendant may later negotiate a joint plea bargain, plead guilty or no contest to the charges in the same proceeding, or appear for sentencing on the charges in the same proceeding. We therefore decline to reconsider Gonzales and we reject defendant’s assertion of sentencing error.
CONCLUSION
The trial court correctly determined that defendant’s two prior serious felony convictions were brought and tried separately and correctly imposed two five-year enhancements.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BAMATTRE-MANOUKIAN, ACTING P.J., DUFFY, J.