*1 C013658. Third Dist. Jan. [No. 1994.] PEOPLE,
THE Plaintiff Respondent, WAGNER,
CLIFFORD WILLIAM Dеfendant and Appellant. [Opinion partial certified for publication.1] Court, 976.1, 1Pursuant to California Rules of rule opinion publication this is certified for the exception with 2 of the section Discussion. *2 Counsel Rosenthal,
Landra E. under Court of for Defend- appointment Appeal, ant Appellant. General, Williamson,
Daniel E. Lungren, Attorney Chief Assistant George *3 General, Anderson, General, Attorney Robert R. Assistant Shirley Attorney McLean, General, A. Nelson and G. John for Plaintiff and Deputy Attorneys Respondent.
Opinion
DAVIS, J.
(hereafter,
667)
Code section 667
section
states in
Penal
part
that
. .
convicted of
any
a serious
who
has been
рerson
felony
previously
receive,
convicted of a serious
. . . shall
in
felony
addition to the sentence
offense,
imposed by
court for the
for
present
five-year enhancement
each such
conviction on
prior
In the
charges brought
of this
published portion
we revisit the
how
opinion
issue of
“on
tried
charges brought and
in section 667
applies
plea adjudi-
offenses,
cations encompassing
an issue
in
multiple
we examined
(1987)
Deay
In the of unpublished portion this we conclude that opinion, California Supreme Court forecloses from precedent us defend- substantively considering ant’s contention that the trial court erred with CALJIC instructing jury 2.90, No. which defines reasonable doubt terms of “morаl certainty.”
Background A convicted defendant jury first for which degree burglary he attempted received sentence. the trial one-year Pursuant section court also three for the imposed five-year consecutive “enhancements” defendant’s three first prior degree convictions. The total sentence was 16 burglary years. convictions,
To defendant’s three first prove degree burglary certified pertinent offered court documents. One con- prosecution copies viction was from and two from 1988. two 1988 convictions are at issue here. The court documents the two regarding 1988 convictions showed that the convictions were committed three separate burglaries weeks 24 and March February 1988. These two apart, burglaries charged felony numbered and 88F02058. complaints, 88F01897 court, In one defendant entered a proceeding municipal negotiated plea each At this noted guilty complaint. proceeding attorney defendant was to enter to both with the “prepared guilty complaints that he would be no more than the midterm of four understanding promised as to one years one-third of the middle term as to the second complaint, so his maximum would be five and four months.’’ complaint, years exposure this Throughout between plea proceeding, magistrate distinguished two cases and referred to them as “both cases.” The factual basis repeatedly each guilty set out supporting independently acceptance Defendant was one constitutional admonishment. When pleas. given *4 the clerk of the court which sentence went with which inquired complaint, matter,” defense counsel remarked it it was “doesn’t but the clerk noted After certifiеd each necessary specify. magistrate accepting pleas, court, case to the numbered superior cases were respectively and 83798. court,
In the defendant was sentenced on each case superior under The its number. noted that two “were respective judge burglaries occasions,” and sentenced them consecu- separate objectives in line with the credits were tively plea agreement. Separate custody awarded and restitution fines were in the two cases. imposed
On defendant contends his two convictions were burglary appeal, and tried as section 667 since “brought required by they separately” Therefore, arose from complaints adjudicated single plea agreement. defendant one of the enhancements based on these convic- argues, five-year follow, For the we tions must stricken. reasons that disagree.
Discussion 1. The 667 Enhancements Section defendant’s two issue on is whether pivotal appeal convictions—which were distinctively adjudicated by plea
1988 burglary and tried “brought the same time based upon separate сomplaints—were section 667.2 two enhancements under separately” purposes imposing in Defendant’s this court to revisit its decision appeal requires California of the Deay, supra, subsequent 194 Cal.App.3d light decision, recent In re and more Court 49 Cal.3d Supreme Court of these two decisions. Appeal opinions interpreting two
In this court held that the defendant was Deay improperly given sentence the defendant’s two enhancements under section 667 since 5-year convictions were not and tried “brought separately” required by “two section. the dеfendant’s two convictions arose from in one to which the defendant had counts” contained accusatory pleading in one We held that the pled guilty proceeding. phrase “brought does not where the are based on apply multiple 286-289.) several counts of a single accusatory pleading. attention, In a footnote which has received considerable we noted that although case numbers be evidence that “separate may multiple priors that, we the fact the separately, reject any suggestion despite defendant to both at the same time be deemed to pled guilty priors they may have been tried of their bearing because separately simply fortuity view, different case “In numbers.” fn. We then added: our and consistent with its section 667 rather purpose, contemplates temporal than administrative separateness.” *5 decided,
Just weeks before the Fifth District in v. Harris People (1987) 31], 192 confronted a similar claim. Cal.App.3d 1197 Cal.Rptr. [238 Harris, In the defendant challenged 5-year the trial court’s of two imposition 667, enhancements under section that his two convictions arguing prior at the same and he wаs sentenced for those by plea hearing concurrently (192 crimes. at The court Harris’s Cal.App.3d p. rejected appellate claim, that his were based on two reasoning convictions prior separate incidents under (Id. two case numbers. at the separate p. Additionally, court noted the trial court’s that Harris had been “tried appellate finding case,” when he to “each different separately” pled guilty robbery although {Ibid.) these were taken in court one pleas hearing. Finally, appellate noted that there was evidencе the been consolidated or tried no cases had and stated that the trial could not be overcome together, by court’s finding the mere fact that the were taken at the same time and the sentences however, on the same After new facts concern day. emerged, imposed of conviction the California Harris’s ing separateness prior proceedings, 131, Court, Harris, his for granted petition in In re Cal.3d Supreme supra, 49 a writ of habeas corpus. “ guilt a and that guilt plea 2There is ‘no distinction between an based on adjudication ” 135, (In People p. quoting Cal.3d at
predicated on a trial on the merits.’ 49 297, 690, 578].) (1966) Ebner 64 Cal.2d 304 411 P.2d [49 734 two given
The In re Harris court held Harris had been improperly 667, evidence new sentence enhancements under section because the 5-year had in a originated complaint showed that his two prior single The court court followed a municipal by single preliminary hearing. . “. . held that to sentence enhancements under section support distinct, to filing have been from must underlying proceedings formally Here, reveals, the record charges as guilt. plainly made in a were not . . . but were ‘brought single questiоn separately,’ at in In re Harris failed Court Supreme complaint.” to and reached mention but noted the issue the conclusion Deay, facing the court in People supra, 192 1197. Cal.App.3d re Harris have court decisions and In subsequent Deay Appellate “on requiring tried interpreted charges be entered on documents but not separate charging requiring guilty pleas or that there separate sentencing days separate proceedings. 908], (1990) v. Thomas Cal.App.3d [267 two under section 667
trial court sentence enhancements imposed 5-year from two two convictions which arose based on two informations. The followed separate felony complaints to these guilty affirmed even the defendant had though pled Fourth District was sentenced on day bargain, on the same plea pursuant on another in the same day sentencing proceedings. these guilty pleas cases, 145-147.) noted that in The court one pp. been and sworn before the case was continued to had selected already jury 146-147.) The mere fact that the defendant allow bargaining. {Id. offenses, did not mean day thereafter the same pled guilty, The Fourth were not tried.” “brought that the cases the pleas that the same date for these accepting District concluded cases, of section 667.” “is no significance nonconsolidated purposes v. Lewis citing People *6 tried’ limitation of section and brought ‘separately 64] [“ convictions are (a), enhancements where subdivision does bar multiple counts different accusatory based on unrelated pleadings.”].) the Deay on the that Deay court grounds The Thomas distinguished accusatory pleading were in one adjudicated counts; from Thomas’s case distinguishes Deay two “This factor containing (219 at Cal.App.3d were adjudicated.” accusatory where separate pleadings 147.) p. California Supreme also it that the “noteworthy”
The Thomas court found holding the of Appeal’s re Harris did not criticize Court Court in In follows: the court characterized as a Thomas People holding initi- the record shows more than one was proceeding “[W]here cases defendant in the and not consolidated . . . the fact the pled guilty ated and sentenced on the same cannot overcome day at the same time (219 citing at the were tried Cal.App.3d p. cases finding at p. People Cal.App.3d the v. Gonzales Cal.App.3d 221] defendant, alleging sepa- in one hearing, pled guilty separate complaints In re Harris’s rate offenses. The Gonzales court considered requirement our footnote in Deay suggest- distinct criminal proceedings” After noting ing “temporal separateness.” a single involved initiated by both In Harris prosecutions document, concluded, “totality the Gonzales court based on charging circumstances,” that Gonzales’s were sepа- charges originated These circumstances included: rately. priors “[Gonzales’s] unrelated; the incidents documents. The separate charging at different ... ... [j]] Up day occurred times places. [the in the two cas- counsel plea hearing], represented separate [Gonzales] in each in- . The case numbers es. .. magistrate^ carefully specified] stance, with took the and certified the cases to the court. Still superior numbers, . case sentences. . . . . . that court imposed separate [^] cases were never consolidated. remаined distinct from formally They [T]he 140, 142, 144.) their inception through sentencing.” As of its the Sixth District in noted that “. . . analysis, Gonzales part of sentence contempora- although guilty pleas imposition neous, alone is sufficient to togetherness we do not believe that temporal of the and the court. The fact that defeat demonstrated intention parties is not court on same day both cases were called for hearing municipal Rather, it is a of consolidation. product evidence of motion or grant court system.” realities of an overburdened criminal practical argument court rejected The Gonzales specifically in “de facto results than case defendant day more one hearing per per benefit the would neither public The court reasoned that consolidation.” “[i]t involved for each case hearings days nor a defendant to require cases. On the contrary, facto’ consolidation of so as not to effect a ‘de cases number of criminal incensed an increased would be public justly unheard; the uncertain while civil cases languish court calendars clogging witnesses; victims, or released as to be called longer [and] status of waiting *7 courtrooms, district deputy additional court personnel, the by expense to handle but ‘temporally sepa- and defense counsel attorneys repetitious, rate,’ (Id. 140-141.) . . . .” hearings
736 in the court looked to policy. Gonzales
Finally,
expressions
public
of California have declared
court noted that the
and the voters
Legislature
for crime is
that “. . . the
of imprisonment
punishment.”
purpose
The court noted that
penalties
Cal.App.3d
p.
“[i]ncreased
‘an offender undeterred
his
brushes with
recidivists exist because
(Ibid., italics in
law deserves more severe criminal treatment.
. . .’
795,
(1988)
v.
206
798
citing People
Rojas
Cal.App.3d
original,
[253
1142,
786];
(1993)
v.
5 Cal.4th
1147
People
see
Jones
[22
Cal.Rptr.
753,
1163].) And
court noted that the
857 P.2d
Legislature
Cal.Rptr.2d
“
(b) of Penal Code section 1385 ‘to abrogate
enacted subdivision
Fritz,
[(1985)]
in
Indeed there distinct” Harris’s and In re statement separateness” went to great lengths courts The Thomas Gonzales requirement. set principle that the “temporаl separateness” the interpretation overcome defendant, adjudication proceedings, that a in Deay requires forth 3(See 705] [defendant People v. Williams also were not prior convictions since two 5-year sentence enhancements improperly given two (1990) 226 single complaint]; were made in a brought separately, but Bizieff violated rights were not equal protection Cal.App.3d 130 [276 235] [defendant’s felony based on two under section enhancements imposition of two sentence convictions, been could have though charges рrior proceedings in both even enhancement].) only one section 667 have resulted in together, which would *8 tried in The Smith court was not as separate proceedings separate days. charitable.
In we considered whether a Deay, two counts of only single accusatory to which a defendant had in one could be pleading, pled guilty proceeding, 667; used for two enhancements under section we held could not. In a they footnote we also noted that while case numbers be evidence may separate alone, be were this factor which may multiple priors brought separately, one of whether administrative would not be conclusive as to simple fortuity, the offenses were tried under section 667. It was in this context separately that we noted that section 667 rather than adminis- contemplates temporal trative This footnote in in of In re separateness. language Deay, light should not be read to resolved be require offenses multiple by plea times to adjudicated separate proceedings separate qualify separately tried under section 667. Different case numbеrs or are separate proceedings factors which merely considered whether may determining section 667 under satisfy distinct” test of In re Gonzales, (See Harris. supra, 220 140-144 pp. a circumstances” [applying “totality to re Harris's “for- analysis distinct” mally requirement].)
That us to the brings matter at hand. The defendant’s two practical convictions at issue involved unrelated criminal incidents separate originated As separate complaints. part plea agreement, defendant’s retained their character and defendant entered a complaints on each A distinction was made between the two cases complaint. throughout both the Defendant was plea hearing sentencing hearing. fact, sentenced for each offense—in different credits were custody awarded and different restitution for each There fines offense. imposed no evidence that are is a formal consolidation was ever These facts sought. 139-140, similar to those in quite Gonzales. defendant, The mere fact that entered pursuant plea agreement, both offenses in one later sentenced for both offenses in prоceeding, conclusion, another on the facts does overcome based proceeding, noted, that these offenses were for section just “brought these convictions purposes. underlying proceedings resulting distinct, (In from formally filing guilt. three enhance- 49 Cal.3d at Accordingly, 5-year ments were properly imposed.4 for the legitimate adequately it fails to account questions, 4While the dissent raises some system central to that contemporary justice system procedure
realities of the criminal Gonzales, (See People plea bargаin encompassing multiple and this offenses. case: *9 Certainty" 2. The “Moral Instruction*
Disposition is The affirmed. judgment J., concurred.
Raye,
BLEASE, P. Acting I dissent. J.
I with the was disagree properly conclusion that defendant majority’s of two felonies on the that were “sepa- convicted serious theory they and virtue of fact that the charged” tried” rately “separately singular cases were treated as two cases that to “formally” notwithstanding pleas offenses were taken and defendant in single both was sentenced jointly The ele- have transmuted the two proceedings. thereby required majority into one. ments enhancement
I was with two which occurred Defendant charged burglaries taken, The three weeks to both offenses were both and apart. pleas singly to a in a single single bargain. plea jointly, proceeding pursuant plea is enter “Mr. bargain Wagner provides: prepared [defendant] with the that he would be understanding promised to both guilty Complaints midterm as to one and one-third no more than the of four years complaint, as to the so his would exposure the middle term second maximum complaint, four it made a condition of the Additionally, be five and months.” was years he time receives on the violatiоn of would run that bargain “any probation 140-142.) what does the section The fundamental issue is supra, 220 context, bargain there is no “trial" as that mean in this where “tried guilty plea and that based on a commonly adjudication guilt An based on term is used. (See In re purposes. for enhancement the merits both count as a conviction trial on bargain are long proceedings comprising as the So here, requirements the manner of section 667 individualized in evident throughout the Harris The formal distinction maintained test of In re are satisfied. distinct” sentencing furthers the guilt case from charging in this agаinst him and being presented with the cases' interest in informed about recidivism, Nothing would and deterring interest defendant public’s punishing furthers the lost, take a brief might be court public requiring a lot of confidence gained, bargain simply considering multiple offense-plea context each in the between offense recess separation functionally separate proceedings. “temporal” in otherwise to create some 1, ante, page *See footnote 729. sentence; and, concurrent with recom- this that the will additionally, mend that Mr. be housed at the Yоuth . . . .” Wagner Authority
Next, defendant as to each although complaint was explained to each the waiver of guilty jointly pled complaint, specific rights Thus, done as to both *10 offenses. charged example: “Magistrate: Sir, as to both counts in both are Complaints you pleading and freely voluntarily?
“The Defendant: Yes. “Magistrate: And are so on both cases with you advice of doing your counsel?
“The Defendant: Yes.
“Magistrate: And in both cases are because are you pleading guilty you in fact of both offenses? guilty
“The Defendant: Yes. “Magistrate: I find there ais factual basis for both I this cаse. pleas further find that both were made and all waivers were made know- and I ingly, intelligently, and and voluntarily. accept approve conditions stated.” previously
In addition the defendant was sentenced for both offenses jointly single proceeding.
II
Penal Code section 667
that each
serious
arise “on
felony
requires
brought and tried
That makes for two distinct elements.
separately.”
288,
1057],
(1989)
In re Harris
775 P.2d
P.2d Harris “court construed the phrase [in former section to that . . . must ‘signif[y] felony proceedings 644] not before trial but also as those separate, only during totally ” (In to the ultimate supra, leading adjudication guilt.’ added.) italics Cal.3d at referred to of “tried
Ebner there Ebner meaning says: ‘tried,’ as used in the context of the ‘charges “The term statutory phrase, tried,’ that the signifies two prior felony proceedings also as must be before trial but totally separate, only during proceedings those ultimate leading guilt.” *11 out, Ebner, In is re Harris also that “. . . there ‘no points again relying upon an distinction between of based of that adjudication guilt guilt on a plea ” (49 on a trial on the Cal.3d predicated merits.’ at p. these offenses are not “tried separately” Putting principles together, prior inter alia the of this case the unless “ultimate guilt”—in pleas— adjudication are in all including made “felony proceedings totally separate” [that are] added.) (Italics of If that to the ultimate guilt.” those “leading adjudication case, be the actions were not the the sole measure of would separability the the “formal” dis- charges—eliminating thereby taken on pleadings—the that the offenses be “tried Put another the way, tinct requirement if were term would have no the sole measure the meaning “tried separately” viewed of of a as emanat- single proceeding, “formal” distinctness two parts from documents. ing charging separate
Yet, It what the in this case comes down to. “The opinion says: that is distinct, in these convictions were formally underlying proceedings resulting ante, 737.) It further (Maj. from filing guilt.” opn., in separate convictions . . originated “The defendant’s two . says: retained agreement, complaints As of defendant’s plea complaints. part on entered each plea character defendant a separate their separate throughout between the two cases both A distinction was made complaint. was sentenced Defendant hearing. hearing sentencing each offense . . .” . separately merits, trial on in a consolidated joint case had resulted
If this the defendant said that it could pleadings, predicated upon in taking a trial their are equivalent Since the pleas was “tried separately.” merits for purposes of a trial on the is joint joint equivalent proceeding is no formal mechanism The fact that ordinarily Code section 667. of Penal pleas, for the taking joint of the proceedings invoked for the consolidation If the trials, a difference. without is a distinction from joint as distinguished stand, be well advised counsel would defense is allowed majority opinion to the of cases pled preliminary the formal consolidation separately to seek taking joint pleas. lan- distinct” the “formally wrong reading
The majority opinion goes 136) meaning bearing re Harris guage from resulted candidate convictions In Harris the two tried.” “separately in the of a single complaint initiated through filing that had been court court, in the superior which were thereafter prosecuted municipal The entered. were to which separate guilty pleas under informations reveals, the charges that “. . . as the record plainly court concluded in a single were made but were not . . . ‘brought separately,’ question Thus, the “con- {Ibid.., added.) says when the court italics complaint.” distinct” (p. were formally made in victions must have been section 667. of Penal Code 133), to but one of two elements it is referring whether is question distinct” test obviously appropriate different ques- to the wholly but not “charges” On the tried.” “separately however brought, tion whether the charges, Ebner, whether the that advanced the test is appropriately latter point, *12 of guilt” ultimate adjudication . . . to the leading entire “felony proceedings are “totally separate.” Harris, did not adopt on habeas notably
In re which arose corpus, the same case on appeal. which considered advanced the court analysis Harris, 1197.) v. on facts People v. Harris (People here, for the defendant was not tried separately held that the much like those consolidated the cases were “[tjhere evidence . . . that is no reason timе were taken at the same Although plea. facts alone cannot these on the same day, defendant was sentenced were tried two cases that the finding the sentencing judge’s overcome (Id. at p. Harris, Penal Code idea, to In re central Harris rejected v. People section in former to that identical” that is “virtually 667 uses a section “ “ technical ‘in precise have been used ‘that terms 644 and [its] ” ’ ” (In re courts.’ them by had been placed upon sense which contrary, emphasized v. People Cal.3d at p. supra, 644.” from old section differently is worded 667 ... thаt “. . . section at p. does, not, For that reason no doubt did People Harris as In re Harris Ebner, the rule of a case Penal Code rely upon interpreting “ section that to be “tried the \ . . prior felony proceedings must be ... as to totally separate those to the ultimate leading [all] ” added.) Cal.3d at italics guilt.’ in this case were manifestly “totally separate.”
I would reverse the determination that the defendant’s sentence bemay enhanced for two serious convictions under Penal Code section felony 667. for review denied Court was
Appellant’s petition Supreme April Mosk, J., Kennard, J., 1994. were of the that the opinion petition should be granted.