Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F07904268, Carlos A. Cabrera, Judge.
Sara H. Ruddy, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Louis M. Vasquez, Deputy Attorneys General, Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Cornell, J. and Kane, J.
INTRODUCTION
Appellant Ralph Zapata Ramos contends the trial court erred when it imposed two five-year enhancements pursuant to Penal Code section 667, subdivision (a)(1) because the prior underlying charges were not brought and tried separately. The People agree. We will reverse and remand.
All further statutory references are to the Penal Code unless otherwise noted.
FACTUAL AND PROCEDURAL SUMMARY
On August 3, 2007, Ramos was charged with committing residential burglary on May 30, 2007. It also was alleged that he had suffered two prior convictions for residential burglary on May 31, 1989, in Santa Clara County case No. 137759. Outside the presence of the jury, Ramos admitted the two prior burglary convictions.
The jury found Ramos guilty of residential burglary as charged. At sentencing, the trial court imposed a five-year term for each of the 1989 convictions, pursuant to section 667, subdivision (a)(1), and an eight-year term for the current burglary offense, for a total term of 18 years. The trial court struck the section 667.5, subdivision (c)(21) enhancement found true by the jury, struck one prior conviction pursuant to section 1385, and stayed three section 667.5, subdivision (b) enhancements.
DISCUSSION
Ramos contends, and the People agree, that the trial court erred in imposing a five-year term for each of the 1989 burglary convictions. Section 667, subdivision (a)(1) provides for the imposition of a five-year enhancement for prior serious felony convictions “on charges brought and tried separately.” In Ramos’s case, the two prior residential burglary convictions were not brought and tried separately.
The phrase “charges brought and tried separately” requires that the prior serious felony convictions arise from proceedings that were “formally distinct.” (In re Harris (1989) 49 Cal.3d 131, 135-137.) Both of Ramos’s prior serious felony convictions arose from the same proceeding, Santa Clara County case No. 137759. Because they arose out of the same legal proceeding, they were not separately brought and tried.
The imposition of two five-year terms pursuant to section 667, subdivision (a)(1) constitutes an unauthorized sentence in Ramos’s case. Therefore, we will strike one of the section 667, subdivision (a)(1) enhancements.
The People request that we remand the case for resentencing. Ramos did not object, or otherwise reply, to this request set forth in the People’s brief. At sentencing, the trial court granted Ramos’s motion to strike a section 667.5, subdivision (c)(21) enhancement, struck one prior conviction in the interests of justice pursuant to section 1385, and stayed the three section 667.5, subdivision (b) enhancements. The People contend that it is reasonable to conclude that the trial court considered the sentence as a whole, including both section 667, subdivision (a)(1) enhancements, when imposing sentence, and the case should be remanded for the trial court to reconsider its sentencing choices.
In People v. Haykel (2002) 96 Cal.App.4th 146, the appellate court reversed the trial court’s finding that a prior conviction constituted a strike. (Id. at p. 151.) The appellate court then remanded for resentencing, allowing the trial court to reconsider its earlier treatment of other enhancements in light of the appellate court’s decision.
We agree with the People that the trial court carefully considered the sentence to be imposed upon Ramos. In light of our determination that one of the section 667, subdivision (a)(1) enhancements must be stricken, we will remand the matter for resentencing.
DISPOSITION
One section 667, subdivision (a)(1) enhancement is hereby stricken and the matter is remanded for resentencing. The judgment is otherwise affirmed.