Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. VCR166738
Richman, J.
A jury found defendant Ricky Demon Matthews guilty as charged of two counts of robbery (Pen. Code, § 211). The trial court found true allegations that defendant had four prior felony convictions, for burglary, robbery, kidnapping, and voluntary manslaughter. The priors were alleged in two ways under section 667: under the five year enhancement specified in subdivision (a)(1), and as qualifying for Three Strikes treatment under subdivisions (b) through (1). However, the court then struck the Three Strikes allegations, but not the subdivision (a) allegations. It then sentenced defendant to six years in state prison for the two robberies, with 15 additional years for three of the subdivision (a) priors. Both sides appeal.
Statutory references are to the Penal Code unless otherwise indicated.
Defendant contends his Sixth Amendment rights of confrontation, compulsory process, and cross-examination were violated when the trial court (1) refused to strike the testimony of a participant in the robberies who refused to answer questions on cross examination after invoking her right against self-incrimination, and (2) allowed police officers to testify concerning their investigation. He also contends that only two of the subdivision (a) enhancements found true by the court were statutorily qualified for the imposition of additional terms of punishment. We conclude that none of defendant’s contentions has merit.
The People contend that the trial court’s ruling striking defendant’s Three Strikes priors pursuant to section 1385 is defective because the court’s minutes do not reflect a statement of reasons for the court’s ruling, a formality expressly required by section 1385. People v. Bonnetta (2009) 46 Cal.4th 143 (Bonnetta) establishes beyond any question that the People are correct. We therefore reverse in order that the trial court may comply with the plain requirement of section 1385 as recently construed in Bonnetta. The judgment of conviction will be affirmed in all other respects.
BACKGROUND
On the evening of March 29, 2003, Lisa Brinkman and Tracy Soppe were at work in a Vacaville retail store selling Coach brand products. Defendant and Cerrissa Simmons entered the store and began examining merchandise. Michael Lovely and Lawrence Lovely entered the store carrying handguns, followed shortly thereafter by a second woman named Antoinette Louvier. The Lovelys ordered Brinkman and Soppe to go to the area of the store where the establishment’s safe was located. Defendant was already there and, after Soppe opened the safe, took money from it. Defendant also took purses from Brinkman and Soppe. One of the Lovelys directed Soppe to open the store’s cash registers, from which he and Louvier took money. Both Brinkman and Soppe were lying on the floor, as ordered, when the robbers left.
Oliver Gumabo, who was about to enter the store, observed a party of four or five people carrying merchandise leave the store and get into two vehicles which drove off at rapid speed, but with no headlights. Gumabo went into the store, discovered Brinkman and Soppe, and, having ascertained what had happened, alerted 911 with a description of the two vehicles.
Vacaville police quickly spotted the two vehicles, which were registered to Lawrence Lovely and Cerrissa Simmons’ mother. After a lengthy high-speed freeway pursuit, one of the cars was abandoned in Oakland, where officers quickly apprehended Lawrence Lovely, Michael Lovely, and Antoinette Louvier. During the pursuit, officers observed objects being thrown out of one of the vehicles, and CHP officers found two firearms abandoned on the freeway.
Brinkman and Soppe were taken to the scene where Lawrence Lovely, Michael Lovely, and Antoinette Louvier were apprehended, where Soppe identified all three as participants in the robbery. Brinkman made no identifications. On April 3, Brinkman and Soppe identified defendant in a photographic lineup.
After Vacaville police interviewed Louvier, suspicion came to rest upon defendant as a participant, and he was arrested on April 4. Subsequent investigation focused their attention upon Cerrissa Simmons as another participant, and she was arrested on May 8. In the immediate vicinity of her home, officers located the other vehicle involved in the robbery.
Defendant did not testify. The only substantive testimony on his behalf was provided by Michael Lovely. According to him, defendant was not present and had no part in the robbery. (See fn. 3 and accompanying text, post.)
Additional particulars of the trial record will be provided in connection with the analysis of defendant’s claims of error.
DISCUSSION
The Trial Court Did Not Violate Defendant’s Sixth Amendment Rights To Confrontation And Compulsory Process
Prior to Cerrissa Simmons taking the stand, the trial court was advised that she might invoke her constitutional right against self-incrimination. The court was further advised that all pending charges against Simmons had been dismissed, and the prosecution was willing to extend use immunity to her. Counsel for Simmons was reluctant to let her client testify because of “an unresolved legal issue about whether the immunity agreement in this county can protect my client [from] potential prosecution in other counties.” Simmons was put under oath, and indicated her intention to invoke her Fifth Amendment right if questioned about the robbery, or “any other incidents that... might relate to criminal activity.” The court then granted the prosecution’s petition for immunity authorized by section 1324, explained the concept of immunity to Simmons, and then “ordered [her] to testify fully in all... matters.” Over the prosecutor’s Evidence Code section 352 objection, the court ruled that defense counsel would be allowed to impeach Simmons with evidence of her convictions for robbery in Yolo and Sacramento counties, and to question her about her involvement in other robberies in Marin, Contra Costa, and Alameda Counties with a person mentioned only as “Buck.” However, the court refused to let Simmons be questioned about her “past employment as a prostitute.” As to whether Simmons would actually testify, the court concluded, “We’ll cross that bridge when we get to it.”
Simmons’ initial testimony before the jury was hardly a boon for the prosecution, being notably vague as to details. In effect, all she was really certain about was that she and defendant first entered the store, followed later by the Lovelys and Louvier. Eventually the other four came out of the store, whereupon she and defendant left in one of the vehicles. She testified that she was outside the store, waiting in her car, “when it went down.” Simmons was shown a transcript of an interview she had with Vacaville Detective Higby in May 2003, but it did not refresh her recollection. Later, when the prosecutor asked her about that interview, Simmons testified, “I don’t remember saying anything to this man... I don’t remember what I said.” Her standard answer to all but the most innocuous of the prosecutor’s questions was “I don’t remember.”
Defense counsel did not get much better results on cross-examination. Simmons did insist that she was with defendant at the Coach store, not with Kennan (aka Buck) Bland. But when counsel tried to question Simmons about whether she, Michael Lovely, and “Buck” robbed a restaurant in Contra Costa County, she twice invoked “my 5th Amendment right to remain silent.” When defense counsel advised the court that “I have a motion... to make, ” the court advised that it would be heard out of the jury’s presence, and inquired if counsel had “[a]ny other questions you want to ask her?” Counsel then elicited from Simmons that about the time of the robbery she suspected defendant of “having a relationship with another woman, ” but this was not a source of tension because defendant “said it wasn’t true.” However, Simmons conceded it did become an issue “after I was arrested” and discovered the suspicion was correct.
Defense counsel tried once more to get details from Simmons about the robbery. She was adamant that no one told her a robbery was planned. He was unsuccessful except for this exchange:
“Q. Do you know, can you recall why you left the store?
“A. Because I didn’t want to be involved [with] what I felt like was going to happen.
“Q. So you felt something, maybe something was going to happen?
“A. Yes, I did.
“Q. But you didn’t have any actual knowledge of what was going to happen?
“A. No.
“Q. And you left out of the front of the Coach Store, right?
“A. Correct.”
After brief redirect examination by the prosecutor, the jury was excused. The court was then advised that the prosecution’s next witness was the officer who interviewed Simmons. That interview was “taped, ” and the tape would be offered as “a prior inconsistent statement” as well as “a prior past recollection recorded.” Defense counsel objected to this proposal, citing Evidence Code section 352. The court ruled that the prosecution would be allowed to proceed:
“I’m going to limit it to five minutes, just basically from the court’s perspective, this witness, again, this is an old case; five years. She cannot remember even under a grant of immunity. I think she was honest. Your questioning of her was almost as leading as I’ve ever heard of any witness on direct examination, and the only sort of relevant issue that I can see is that she says indeed she was with Mr. Matthews that day at the Coach, so she identifies Mr. Matthews. [¶] They get in the car, and she seemed pretty firm about that, so I’ll allow some brief opportunity to place Detective Higby on for prior consistent statements, but I don’t believe that the defense did much to move her off of that issue, so I’ll allow it.”
Defense counsel then moved “to strike Ms. Simmons’ testimony.” He explained: “Ms. Simmons testified on direct under the grant of immunity agreement that the People provided with her. [¶] Unfortunately, she nor her counsel were convinced that immunity agreement protects her in other counties, so when it came time for my cross-examination, when I went into an area the court had authorized.... namely, her participation in this out-of-county robbery, she invoked the 5th. [¶] It’s my contention that her invocation of that 5th Amendment right in the face of this grant of immunity is violating my client’s right to confrontation and therefore, since Mr. Matthews... did not have a full and complete right of confrontation to this witness, her entire testimony should be stricken.”
The prosecutor opposed the motion, arguing: “[C]ounsel is going to have the opportunity to bring up this evidence that he seeks from other witnesses, but perhaps more importantly..., we do believe... as what’s written in our immunity petition, that Ms. Simmons would be covered under this grant of immunity.” The court inquired: “So are you saying that I should bring her back in on the witness stand and force her to answer those questions? [¶] If I were to do that, ... under advice of her counsel, she would still invoke her 5th Amendment rights.” The prosecutor replied that “Ms. Simmons should—I would request that she be directed to answer. This immunity agreement, I believe, does cover it.” There was some discussion as to whether Simmons could face prosecution under the governing statute of limitations, and whether the scope of the immunity granted by the court was statewide. The court confirmed that Simmons’ counsel would continue to advise her not to answer, and then observed, “I’m just sort of, so if I order her to testify, she’ll say no, regardless.” The court decided to defer its ruling until after “[we] have some limited testimony from Mr. Higby.”
Before the jury, Detective Higby authenticated a videotape of the interview he had with Simmons on May 8, 2003. At that time Simmons stated that defendant “was carrying purses on his arm, or in his hands as he exited the store.” Simmons also stated that personal items belonging to Brinkman and Soppe had been mailed back to them from near defendant’s home in Richmond.
The trial court denied the prosecutor’s request to play the tape for the jury.
After the prosecution rested its case-in-chief, Michael Lovely testified for the defense. Lovely testified that it was him, his brother, Simmons, and Louvier, in company with Keenan Bland, who robbed the store. It was Bland, not defendant, who first entered the store with Simmons. The Lovelys and Louvier entered five to ten minutes later. Both Lovelys were armed. Simmons was a full participant in the robbery. She did not wait outside, but was inside the store, “accumulating merchandise and also getting money out of the [cash] registers.” Lovely acknowledged that he had “a plea agreement with the District Attorney in this case” and had been sentenced to “16 years state prison.” In response to the final question from defendant’s counsel, Lovely denied that he was involved with Simmons and Bland in the Contra Costa robbery. Lovely testified on cross-examination that defendant is a good friend, whom he has known for 20 to 25 years. Lovely has known “Keenee” Bland for 15 to 20 years, but has had no contact with him for the past five years. Lovely never told police that it was Bland, not defendant, involved in the robbery because “I never talked to any law enforcement officers.” Lovely had not spoken with defendant about this case.
Both Lovely and Simmons identified Bland as the “Buck” supposedly involved in the “out-of-county” robberies in Contra Costa and Marin counties.
Concerning defendant’s motion to strike Simmons’ testimony, the court ruled that “I deferred my ruling after I heard from the witness [i.e., Lovely] who would impeach her on or present evidence on those issues; nothing was presented. [¶] So based on that, I’m going to deny your request to strike her testimony in its entirety.”
Defendant presents two contentions attacking this ruling as violating rights guaranteed him by the Sixth Amendment of the United States Constitution. First, he argues that allowing such a drastic curtailment of his right to cross-examine Simmons infringed his right of confrontation. Second, he argues that by not ordering Simmons to testify pursuant to the grant of immunity the trial court denied his right to compulsory process.
Which, as pertinent here, provides: “In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor.” Our state constitution has similar guarantees. (Cal. Const., art. I, § 15.)
Concerning defendant’s first argument, this court has held: “Because it relates to the fundamental fairness of the proceedings, cross-examination is said to represent an ‘absolute right, ’ not merely a privilege.” (Fost v. Superior Court (2000) 80 Cal.App.4th 724, 733.) “Where a witness refuses to submit to cross-examination, ... the conventional remedy is to exclude the witness’s testimony on direct. As stated in Witkin: ‘In either a civil or criminal case, where a party is deprived of the benefits of cross-examination of a witness by refusal of the witness to answer, the trial court may strike out the direct examination. [Citations]’ [Citation.] This rule applies even ‘where the refusal to answer is based on a valid claim of privilege.’ [Citation.] Where a witness refuses to submit to proper cross-examination regarding material issues, the striking out of direct testimony is common.... Striking a witness’s entire testimony is, of course, a ‘drastic solution’....” (Id. at pp. 735-736, fn. omitted.)
“Although we recognize that a criminal defendant has a constitutional right to present all relevant evidence of a significant probative value in his favor [citations], ‘[t]his does not mean that an unlimited inquiry may be made into collateral matters, the proffered evidence must have more than “slight-relevancy” to the issues presented.’ [Citation.]” (People v. Jennings (1991) 53 Cal.3d 334, 372; see People v. Marshall (1996) 13 Cal.4th 799, 836.) “ ‘ “[N]ot every restriction on a defendant’s desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance.” [Citation].’ [Citation.]” (People v. Harris (2008) 43 Cal.4th 1269, 1292.)
It should be noted that defendant is not contending that his right of cross examination was restricted other than with respect to Simmons’ participation in unrelated offenses. In fact, as noted by the court, defendant was allowed an unusual degree of latitude in questioning Simmons.
By questioning Simmons about unrelated and uncharged offenses, defendant was attempting to impeach her credibility. That goal was a “ ‘collateral credibility issue[]’ ” (People v. Ayala (2000) 23 Cal.4th 225, 301) to the issue of defendant’s guilt. (See People v. Sanders (2010) 189 Cal.App.4th 543, 556.) Because Simmons’ criminal history thus did not have “ ‘a significant probative value’ ” in proving defendant’s innocence, a less than exhaustive exploration of it on cross-examination would not establish a violation of defendant’s right of confrontation. (People v. Harris, supra, 43 Cal.4th 1269, 1292; People v. Jennings, supra, 53 Cal.3d 334, 372.)
Moreover, “unless the defendant can show that the prohibited cross-examination would have produced ‘a significantly different impression of [the witness’s] credibility, ’ the trial court’s exercise of its discretion in this regard does not violate the Sixth Amendment.” (People v. Frye (1998) 18 Cal.4th 894, 946, quoting Delaware v. Van Arsdall (1986) 475 U.S. 673, 680.) Stated differently, “A trial court’s limitation on cross-examination pertaining to the credibility of a witness does not violate the confrontation clause unless a reasonable jury might have received a significantly different impression of the witness’s credibility had the excluded cross-examination been permitted.” (People v. Quartermain (1997) 16 Cal.4th 600, 623-624.)
Here, the jury learned as Simmons took the stand that she was not appearing voluntarily but under compulsion of a subpoena and a grant of immunity. The prosecution’s direct examination clearly demonstrated that she was obviously unwilling to volunteer information that was damaging to defendant. Only the most minimally incriminating testimony could be pried out of her by the prosecutor. In fact, all Simmons really did was place defendant at the scene. This was not an inconsequential point, but it was not one that only Simmons could prove. Moreover, Simmons twice admitted—at the start of both her direct and cross- examinations—that she had two convictions for robbery which resulted in a stay in state prison, and that the charges against her for participating in this robbery had been dismissed. Forcing her to testify that she had participated in two other robberies would not be likely to produce a significantly lower impression of her credibility. (People v. Frye, supra, 18 Cal.4th 894, 946; People v. Quartermain, supra, 16 Cal.4th 600, 623-624; cf. People v. Ledesma (2006) 39 Cal.4th 641, 705 [trial court did not abuse its discretion in sustaining objections to defense cross-examination of prosecution’s witness’s involvement in prostitution and use of drugs; when witness had already admitted felony convictions and that she had been in jail numerous times, any further evidence of criminal activities relevant to her credibility was cumulative].)
“[T]he Confrontation Clause guarantees an opportunity for effective cross examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” (Delaware v. Fensterer (1985) 474 U.S. 15, 20.) This was the opportunity extended to defendant.
Concerning defendant’s second claim, the Attorney General points out that defendant never asked the trial court to compel Simmons to provide answers to defense questions. This alone requires rejection of defendant’s claim because “it would be wholly inappropriate to reverse a superior court’s judgment for error it did not commit and that was never called to its attention.” (People v. Lilienthal (1978) 22 Cal.3d 891, 896; see In re Cheryl E. (1984) 161 Cal.App.3d 587, 603 [“A party on appeal cannot successfully complain because the trial court failed to do something which it was not asked to do....”].)
Defendant tries to get past this trial omission by recasting the issue as that of his trial counsel’s constitutional incompetence for not moving the court to compel Simmons to answer. We could summarily reject this effort because it did not appear until defendant’s reply brief. (People v. Baniqued (2000) 85 Cal.App.4th 13, 29; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 723, p. 790.) We could also reject it because “ ‘[i]f the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[, ]... unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, ’ the claim on appeal must be rejected. [Citation.]” (People v. Wilson (1992) 3 Cal.4th 926, 936; accord, People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)
“ ‘A reviewing court will not second-guess trial counsel’s reasonable tactical decisions.’ ” (People v. Riel (2000) 22 Cal.4th 1153, 1185.) A reviewing court on direct appeal will reverse a conviction on this ground only if the record establishes that trial counsel could have had no rational purpose for a specified act or omission. (People v. Frye, supra, 18 Cal.4th 894, 979 980; People v. Lucas (1995) 12 Cal.4th 415, 437.) The issue of compelling Simmons to answer was raised and considered by the court, which was obviously reluctant to try coercion. Whether that conclusion was legally correct is not a matter that must be resolved here. Having already seen the court give the cold shoulder to the prosecutor’s suggestion that Simmons be compelled to answer, defense counsel could reasonably make the tactical decision not to ask the court for something it had already refused. Defendant’s claim of ineffective assistance therefore fails. (See People v. Gutierrez (2009) 45 Cal.4th 789, 804-805, and authorities cited.)
Defendant’s Claim that His Trial Was Infected By Crawford Error Was Not Preserved For Appeal
During its case-in-chief, the prosecution presented testimony from Vacaville Police Detective Higby and Vallejo Police Officer Darden that it was after a number of interviews with Antoinette Louvier while she was in the custody of Solano authorities that the investigating officer “c[a]me up with an additional suspect”—i.e., defendant—that they “would follow up and investigate.” Defendant contends that the admission of this testimony violated his rights under the confrontation clause of the Sixth Amendment of the United States Constitution as enunciated in Crawford v. Washington (2004) 541 U.S. 36.
“In Crawford v. Washington (2004) 541 U.S. 36, the United States Supreme Court announced a new standard for determining when the confrontation clause of the Sixth Amendment prohibits the use of hearsay evidence—i.e., an out-of-court statement offered for its truth—against a criminal defendant. Crawford held that this clause protects an accused against hearsay uttered by one who spoke as a ‘ “witness[]” ’ ‘ “bear[ing] testimony” ’ [citation] if the declarant neither takes the stand at trial nor was otherwise available for cross-examination by the accused. [¶] Crawford declined to provide a comprehensive assessment of what kinds of hearsay fall within ‘this core class of “testimonial” statements.’ [Citation.] However, the court concluded that, even under ‘a narrow standard, ’ testimonial statements include those made, during a formal police interrogation, by one who was herself a suspect in the crime under investigation. [Citation.]” (People v. Cage (2007) 40 Cal.4th 965, 969.)
Louvier did not testify at defendant’s trial. Given that she was identified as a participant in the robbery, and was arrested in the company of two other participants, she would certainly appear to be “herself a suspect in the crime under investigation.” (People v. Cage, supra, 40 Cal.4th 965, 969.) And, although the prosecutor did his best to frame his questions in such a way as to avoid eliciting an answer that “She said....” or “Ms. Louvier told us...”, it seems clear that it was the substance of what she told the officers that focused attention upon defendant. We will therefore assume, solely for purposes of this discussion, that Louvier’s statements qualified as hearsay.
Defendant admits an obvious problem, but he believes there is a solution: “Although appellant did not object to the admission of the challenged testimony, this claim that alleges the deprivation of a fundamental constitutional right was not waived and may be heard on appeal. (People v. Belmares (2003) 106 Cal.App.4th 19, 27.)” The cited authority does quote the statement from People v. Vera (1997) 15 Cal.4th 269, 276, that “A defendant is not precluded from raising for the first time on appeal a claim asserting the deprivation of certain fundamental, constitutional rights.” However, subsequent to Vera, our Supreme Court has repeatedly held that Crawford claims may not be considered on appeal unless objection on the same ground was made at trial. (People v. D’Arcy (2010) 48 Cal.4th 257, 290; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1028 & fn. 129; People v. Burgener (2003) 29 Cal.4th 833, 869; People v. Catlin (2001) 26 Cal.4th 81, 138, fn. 14.) Because defendant concedes that he did not make the appropriate objection at trial, we are unable to address the merits of his contention. (Evid. Code, § 353, subd. (a).)
Substantial Evidence Supports The Trial Court’s Implied Finding That Three Of Defendant’s Prior Convictions Were “Brought And Tried Separately”
The bifurcated issue of defendant’s prior felony convictions was submitted on the basis of what is commonly known as a “969(b) packet.” After examining the packet. defendant raised no objection to its contents. Based on those contents, the court stated that “having reviewed the 969(b) packet, the People’s Exhibit 1, I’ll find that one, the defendant in this case, Mr. Ricky Demon Matthews, is indeed the same Ricky Demon Matthews who appears to have suffered the following convictions: A 459 in the first degree out of Alameda Superior Court; a 211 out of Alameda, and a 207 out of Alameda, and a 192(a) out of Alameda as alleged. [¶] For purposes of 667(b) through (i), ... as well as alleged pursuant to 667(a)(1), so I’ll find the priors to be true for those purposes.”
It was alleged in the information that defendant had suffered a first degree burglary conviction on June 13, 1984, and robbery, kidnapping, and voluntary manslaughter convictions on October 10, 1986. Defendant concedes that the enhancement for the 1984 burglary conviction is sound. However, he contends that the 1986 convictions were not proven because the prosecution’s evidence cannot satisfy the statutory requirement that all three were “charges brought and tried separately.” (§ 667, subd. (a)(1).) Thus, defendant contends, he could properly be sentenced only for two five-year enhancements, one for the 1984 burglary, and only one more for all of the 1986 convictions. Defendant’s contention amounts to a claim that substantial evidence does not support the trial court’s implicit finding that all three of the 1986 convictions were shown to have been “brought and tried separately.” Defendant is correct only in part.
This contention might be treated as moot had not the trial court dismissed its findings that defendant’s prior convictions qualified as strikes because the Three Strikes law does not have the “brought and tried separately” requirement. (People v. Fuhrman (1997) 16 Cal.4th 930, 939-940.) Even though we reverse those dismissals in the final part of this opinion, the trial court on remand might again dismiss the Three Strikes findings. In that event, defendant would again be sentenced under section 667, subdivision (a)(1) if the 1986 convictions were “brought and tried separately.” It is this possibility that requires we address defendant’s contention.
As so formulated, defendant’s claim is to be evaluated according to familiar criteria. “ ‘When, as here, a defendant challenges on appeal the sufficiency of the evidence to sustain the trial court’s finding that the prosecution has proven all elements of the enhancement, we must determine whether substantial evidence supports that finding. The test on appeal is simply whether a reasonable trier of fact could find that the prosecution sustained its burden of proving the enhancement beyond a reasonable doubt.’ [Citation.] In making this determination, we review the record in the light most favorable to the trial court’s findings. [Citation.]” (People v. Rodriguez (2004) 122 Cal.App.4th 121, 129.)
Here, the entirety of the evidence submitted on the 1986 convictions consisted of two abstracts of judgment. The first, for “Case Number H-8495-A” and dated June 15, 1992, shows that defendant was convicted of voluntary manslaughter on “10/10/86” and was sentenced by Judge Gordon Baranco on “11/13/86” to 16 years in state prison. The second abstract of judgment, also dated June 15, 1992, is for “Case Number 83695 A.” It shows that defendant was convicted of both the robbery and the kidnapping on “10/10/86” and was sentenced by Judge Baranco on “11/13/86” to five years for the kidnapping, with three years for the robbery, to be served concurrently with the term for the manslaughter.
The abstract recites that “The term imposed in this action shall commence to run immediately and concurrently with the State Prison term imposed this date in Action No. H-8495-A.”
The fact that the 1986 convictions had two case numbers is a reasonable basis for concluding that the manslaughter conviction was “brought and tried separately” from the kidnapping and robbery convictions, even if defendant was sentenced on both cases more or less contemporaneously. (See People v. Wiley (1995) 9 Cal.4th 580, 593; People v. Wagner (1994) 21 Cal.App.4th 729, 737.) That qualifies the burglary, the manslaughter, and either the robbery or kidnapping convictions for use under section 667, subdivision (a)(1). Defendant is correct that the abstract for the kidnapping and the robbery convictions in “Case Number 83695 A” is insufficient to establish that both will support a separate five-year enhancement because there is nothing in this single page document to establish that both were “brought and tried separately.” However, that makes three convictions for which defendant could be sentenced, not two as defendant calculates.
It must be noted in fairness to the trial court that it may have modified its original position. By the time of sentencing, the court learned that both the probation officer and the prosecution believed that only three of the four priors alleged could be established as “brought and tried separately.” The trial court apparently agreed, because it imposed only three five-year enhancements for defendant’s priors. If, on the remand we order by reason of another matter, the trial court again sentences in conformity with section 667, subdivision (a)(1), it will not err if it imposes three additional five-year terms to enhance defendant’s principal term.
The People’s Claim Of Bonnetta Error Is Sound
At the time of sentence defendant moved under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 to dismiss the three strike priors. After hearing argument, the court granted the motion: “The court will in its discretion based on the fact that... these same strikes have been used for 667(a)(1)’s, the fact that the strikes as alleged pursuant to 1170.12 (a) through (d) and 667 (b) through (i) were used in his Sacramento case, of which he... received a three strikes sentence that he is presently serving, will dismiss those, all of them, for purposes of the three strikes law..., thereby resulting in a sentence of 21 years.” The sentencing minutes recite only that the court “grants... Romero Motion & dismisses 4 Strikes.”
The Attorney General contends that this record cannot constitute compliance with section 1385, which directs that “[t]he reasons for the [court’s] dismissal must be set forth in an order entered upon the minutes.” We agree.
This court knows about Bonnetta, because it came through here before going to the Supreme Court. In Bonnetta, we had a situation where the trial court spelled out in considerable detail its reasons for striking various enhancement allegations that had been found true. The court’s explanation was recorded in a reporter’s transcript, but not in the minutes. Faced with an appeal by the People, we reluctantly concluded that established law left no opportunity to apply harmless error analysis by using the reporter’s transcript to make good the deficiency of the minutes. (See Bonnetta, supra, 46 Cal.4th 143, 150.)
The Supreme Court accepted our suggestion that the issue be revisited. However, the Supreme Court did not alter the long-standing construction of section 1385, holding as follows:
“A century of judicial decision, looking to the Legislature’s intent in enacting Penal Code section 1385, has construed its provisions to be ‘mandatory, ’ so that an order of dismissal is ineffective in the absence of a written statement of reasons entered upon the minutes. Despite the multitude of decisions adopting this construction, defendants... invite us to adopt an interpretation that will preserve an order of dismissal entered without a written statement of reasons entered upon the minutes if the appellate court is able to discern the trial court’s reasoning from some other portion of the record. Defendants’ construction has some appeal, particularly where, as here, the trial court’s reasons unambiguously appear in the transcript of the oral proceedings. Nonetheless, that the settled meaning of section 1385 in some instances renders compliance with its mandate inefficient does not justify the conclusion that the Legislature that enacted it intended something different, particularly when valid reasons existed and continue to exist for the long-standing interpretation.” (Bonnetta, supra, 46 Cal.4th 143, 146.)
“The cases have long held that a dismissal without a written statement of reasons is invalid and of no effect regardless of the reviewing court’s belief that the reasons for the dismissal can be discerned from other portions of the record.... [¶] Numerous cases... emphasiz[e] that the public declaration inherent in a written order is a purposeful restraint, that Penal Code section 1385’s requirement are not directory and may not be disregarded, and that a reporter’s transcript showing the trial court’s motivation is not enough; the minutes must reflect the reason. [Citations.]” (Bonnetta, supra, 46 Cal.4th 143, 149.) “[W]e are not persuaded the historic construction of Penal Code section 1385 was wrong.” (Id. at p. 151.)
“Having concluded Penal Code section 1385 states a mandatory requirement, we have no reason to consider whether a violation of its provisions might be deemed harmless. Nonetheless, in response to the argument that there is no logical reason to hold invalid a dismissal if the trial court had discretion to grant it, we find it useful again to note that the purpose of the requirement is to allow review of the trial court’s reasons for ordering dismissal. ‘[W]e are dealing not with a pure question of law but with the exercise of a trial court’s discretion. It would be incongruous for an appellate court, reviewing such order, to rely on reasons not cited by the trial court. Otherwise, we might uphold a discretionary order on grounds never considered by, or, worse yet, rejected by the trial court. And, if the appellate court is free to scour the record for other reasons to support the dismissal, or accept reasons suggested by the defendant, there was no reason for the Legislature to require that the lower court record the basis for the dismissal in the first instance.’ [Citation.] Of course there is little reason to fear that a trial court’s abuse of discretion will go undetected when, as here, the reasons for a dismissal are clearly stated during the oral proceedings and have become a part of the reporter’s transcript. However, experience suggests the more common practice is for the court and counsel to engage in a wide-ranging discussion, before the court, without clearly identifying the points it found persuasive, states its decision. And although a rule might be stated that would allow the reviewing court to uphold the trial court’s order if, but only if, it finds the trial court’s reasons to be clearly articulated, or if any and all of the reasons mentioned would justify dismissal, such a rule, while reducing the trial court’s burden, would increase that of the appellate courts without eliminating the possibility the reviewing court would misidentify the specific reason or reasons for the trial court’s ruling.” (Bonnetta, supra, 46 Cal.4th 143, 151-152.)
Defendant argues the minutes here satisfy Bonnetta: “The minutes are not silent. They reflect that defendant filed a Romero motion, which is a motion authorized by a California Supreme Court opinion. They reflect that that the motion was found meritorious and was granted with the result that appellant’s prior strikes were stricken. This distinguishes this case from Bonnetta, where the minutes apparently reflected a sua sponte disposition, not a contested legal motion that was found meritorious.” Also, “The entry in the minutes also satisfies the Bonnetta court’s concern about meaningful appellate review. This concern necessarily focuses on the courts, not the public. The trial court’s obligation is not to convince the lay public that its decision was correct, only that the decision was made according to orderly process. As for the courts, the only reasonable way to read Bonnetta’s concern with appellate review is not that it is impossible to glean the reasons for a legitimately entered order from the record; rather, it is that without an entry in the minutes, the reviewing court must speculate if it is making up reasons to salvage an order that was actually entered for an improper purpose. Once it is clear from the minutes, as it is here, that the trial court did not act lawlessly, the appellate court can then review the record to determine if the trial court’s decision should be affirmed or reversed.” This reasoning is not persuasive.
Defendant is teasing out of the minutes the maximum amount of information that the rest of the record provides. But the whole point of Bonnetta is to preclude resort to collateral sources, and to foreclose explanation by inference. Failure to comply cannot be cured in the usual ways. There is no alternative to following the statute according to its literal language.
Here, the minute entry does not reflect the basis for defendant’s Romero motion, the reasons for the prosecutor’s opposition, and, most importantly, which reasons for granting the motion the trial court found persuasive. The minutes give no hint of what ultimately moved the trial court—a sense of proportionality and futility, that because defendant had already been sentenced in Sacramento to a Three Strikes sentence of more than 100 years to life, there was scant purpose in a second application of Three Strikes that would not keep defendant behind bars for a day longer. This can be gleaned from the reporter’s transcript of the sentencing hearing, and the clerk’s transcript with the parties’ written papers. Whatever power defendant’s arguments might have in the abstract, they can gain no traction here, because Bonnetta conclusively settles the matter. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The judgment of conviction is reversed for the limited purpose of a remand in order “to allow the trial court either to correct the error by again ordering dismissal, setting forth its reasons in an order entered upon the minutes, or to reconsider its decision and take appropriate action including, if necessary, proceeding as if the order had not been entered in the first instance.” (Bonnetta, supra, 46 Cal.4th 143, 146.) The judgment is affirmed in all other respects.
We concur: Kline, P.J. Haerle, J.