Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF119509, Richard Todd Fields, Judge.
Stephen M. Lathrop, 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, and Jeffrey J. Koch, Supervising Deputy Attorney General, for Plaintiff and Respondent.
OPINION
King, J.
A jury convicted defendant of residential burglary (count 1—Pen. Code, § 459) and assault with a deadly weapon (count 2—§ 245, subd. (a)(1)), along with additional special allegations (§§ 667, 1192.7, subd. (c)(23)). At a bench trial thereafter, the court found true allegations that defendant had suffered three prior serious felony convictions. (§ 667, subd. (a).) In addition to imposition of sentence on the substantive counts, special allegations, and other prior conviction allegations, the court sentenced defendant to three consecutive five-year terms on the section 667, subdivision (a) enhancements, for an aggregate term of 15 years plus 25 years to life. On appeal, defendant contends the court erred in imposing three 5-year terms, rather than merely one 5-year term, because the three prior convictions were not “brought and tried separately.” (§ 667, subd. (a).) The People concede that one 5-year term must be stricken because it was not brought and tried separately from another conviction in the same case number for which sentence had already been enhanced; however, the People maintain that imposition of two separate five-year terms is appropriate because two of defendant’s prior convictions derived from separately brought and tried actions. We agree with the People and, therefore, order one of the consecutive five-year terms imposed pursuant to section 667, subdivision (a) stricken. In all other respects the judgment is affirmed.
All further statutory references are to the Penal Code unless otherwise indicated.
I. FACTS AND PROCEDURAL HISTORY
Police arrested defendant after he impermissibly entered the residence of another individual and attempted to stab him. Defendant admitted on the stand that he had suffered convictions for two separate prior robberies and one prior offense of oral copulation by force. By stipulation of counsel and the admission of defendant, all three convictions occurred on June 15, 1999. The first robbery occurred in April 1998. The second robbery occurred in August 1998 when defendant robbed another man and also forcibly orally copulated that man.
At the bench trial on the prior conviction allegations, the People, without objection, moved into evidence People’s exhibit 14, certified, self-authenticated records from the Department of Corrections and Rehabilitation regarding defendant’s prior convictions. That packet contains two separate abstracts of judgment with separate superior court numbers. The first, case No. RIF082423, lists convictions for oral copulation by force (§ 288, subd. (c)(2)) and robbery (§ 211) occurring on June 15, 1999, imposition of sentence which occurred on the same day. The second, case No. RIF082477, lists a conviction for robbery (§ 211) occurring on June 15, 1999, imposition of sentence which also occurred that day. Both abstracts of judgment list the same award for actual and good conduct credits.
Defendant argued below that the court could only impose two consecutive five-year sentences pursuant to section 667, subdivision (a), one for the convictions in case No. RIF082423, and one for the conviction in case No. RIF082477. The court, the People, and defendant essentially argued the propriety of imposing separate five-year terms for the two convictions in case No. RIF082423 under a section 654 analysis, i.e., whether defendant’s intent or objective for the two offenses were inseparable. The court resolved the issue in favor of the People, finding the behavior involved in the two offenses was separate, and imposition of consecutive five-year terms on each conviction was proper.
II. DISCUSSION
Defendant contends that only one 5-year prison term may be imposed pursuant to section 667, subdivision (a) because the evidence adduced below failed to show that each conviction was brought and tried separately. The People agree that one of the two 5-year sentences imposed for defendant’s convictions in case No. RIF082423 must be stricken because both offenses were brought and tried together. However, the People maintain that a separate five-year sentence for the conviction in case No. RIF082477 was proper because it was brought and tried separately.
“[T]he issue whether [section 667, subdivision (a)(1)] prior convictions arose from ‘charges brought and tried separately’ is to be determined by the court rather than the jury.” (People v. Wiley (1995) 9 Cal.4th 580, 583, 592 (Wiley).)
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.” In In re Harris (1989) 49 Cal.3d 131, the California Supreme Court ruled that “the requirement in 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.” (Id. at p. 136.) There, where separate convictions were obtained with separate superior court case numbers, the court found that the convictions had not been brought separately when, on petition for writ of habeas corpus, the defendant showed that both offenses had initially been charged in the same complaint, despite the fact that the convictions derived from separate informations with separate case numbers.
In the present case, the People below failed to produce copies of the complaints in the bench trial on defendant’s prior convictions. Nonetheless, in Wiley, the court concluded that “the prosecution need not always produce the complaints filed in [the lower] court in order to prove that charges were brought separately within the meaning of section 667[, subdivision] (a)(1).” (Wiley, supra, 9 Cal.4th at p. 593.) This is true where “the trial court reasonably could infer that the charges had been initiated in separate complaints.” (Ibid.) In its own case, this was reasonably inferable because the lower court case numbers were not “successive, or nearly so[,]” but differed “significantly[,]” i.e., by 135 case numbers. (Ibid.)
While in the instant case the lower court numbers differed only by 54 case numbers, we think it is reasonably inferable therefrom that the charges in each case were brought separately. Moreover, the People on appeal request this court to take judicial notice of the files in case Nos. RIF082477 and RIF082423. Attached to their request are copies of the cover sheets for the complaints in both cases. In his reply brief, defendant does not oppose this court taking judicial notice of the attached complaint cover sheets; however, he does oppose judicial notice of the entire case files. We grant the People’s request for judicial notice of the attached complaint cover sheets, but deny, as unnecessary, their request as to the entire case files. (People v. Bizieff (1990) 226 Cal.App.3d 130, 133, fn. 2; Wiley, supra, 9 Cal.4th at p. 594 [propriety of appellate court taking judicial notice of pleadings and/or files below in order to determine whether prior convictions were brought and tried separately].) The complaint cover sheets reveal that each case was brought separately, on different dates, in different complaints. The charges for which defendant was convicted in case No. RIF082423 were filed in a complaint on September 15, 1998. The charge for which defendant was convicted in case No. RIF082477 was brought on September 21, 1998. Thus, the court erred to the extent that it imposed separate five-year terms for both charged convictions in case No. RIF082423 because those charges were not brought separately. The charge in case No. RIF082477 was separately brought. Defendant maintains that, even to the extent that the prior convictions in the separate lower court case numbers were “brought” separately, they were not “tried” separately because the convictions occurred on the same date, sentence was imposed on the same date, and the same conduct credits were awarded for each. The People maintain that imposition of two 5-year consecutive terms was appropriate because the character of defendant’s convictions and sentencing in the two cases were formally distinct despite having occurred on the same date. We agree with the People.
In People v. Wagner (1994) 21 Cal.App.4th 729, 737 (Wagner), the court determined that whether prior convictions had different case numbers or were determined in separate proceedings “are merely factors which may be considered in determining whether prior convictions satisfy section 667 under the ‘formally distinct’ test of In re Harris[, supra, 49 Cal.3d 131].” In its own case, the court noted that the trial court took defendant’s underlying pleas of guilty separately, made a distinction between the two cases throughout the plea hearing and sentencing hearing, that defendant received differing custody credits for each case, and that there was no evidence that the separate cases were consolidated. (Ibid.) Hence, the court concluded that “[t]he mere fact that defendant, pursuant to a plea agreement, entered pleas to both offenses in one proceeding, and was later sentenced for both offenses in another proceeding, does not overcome the conclusion, based on the facts just noted, that these offenses were ‘brought and tried separately’ for section 667 purposes.” (Ibid.) The court noted that appellate court decisions interpreting In re Harris have consistently required separate charging documents, “but [have] not require[d] that guilty pleas be entered on separate days or that there be separate sentencing proceedings.” (Id. at p. 734.) In People v. Gonzales (1990) 220 Cal.App.3d 134, the court held that concerns for judicial economy foreclosed a requirement that in order to be considered separately brought and tried, prior plea convictions must be entered on separate days. (Id. at pp. 140-141.)
We believe that the People adduced sufficient evidence below for a determination that defendant’s prior convictions in the separate case Nos. RIF082423 and RIF082477 were separately brought and tried such that imposition of two consecutive five-year terms pursuant to section 667, subdivision (a) is proper. Here, defendant was charged in separate complaints on separate days. The underlying offenses occurred on separate days and involved separate victims. While defendant pled guilty and was sentenced in both cases on the same date, the court maintained their formal distinctness by compiling separate abstracts of judgment. There was no evidence that the cases had been consolidated. (Wagner, supra, 21 Cal.App.4th at p. 737; People v. Harris (1987) 192 Cal.App.3d 1197, 1202-1203; People v. Thomas (1990) 219 Cal.App.3d 134, 147; People v. Gonzales, supra, 220 Cal.App.3d at pp. 139-141 [lack of evidence of consolidation is a factor to consider in determining whether prior convictions were separately brought and tried].) Indeed, the abstract of judgment in case No. RIF082477 acknowledges the separate case insofar as it reads that sentence in that case is to run “concurrent to [case No.] RIF082423[.]” (Capitalization omitted.) Requiring that the trial court hold separate plea and sentencing hearings to maintain formal separateness for purposes of permitting enhancement for future potential crimes pursuant to section 667, subdivision (a), would amount to an empty formality and waste of scarce judicial resources. (People v. Gonzales, supra, at pp. 140-141.)
We realize that unlike Wagner, defendant here received the same award of conduct credits in each case, however, we do not believe this factor is, alone, compelling. This could easily be explained in the event that defendant was picked up at the same time on both complaints; thus, serving the same amount of custody time for each case. In Wagner, it is possible defendant was initially apprehended, served time, and released on the first charge and then reapprehended on the latter filed charge. Thus, award of separate conduct credits in such circumstances would be proper. Likewise, while the Wagner court had resort to more information regarding the prior convictions, i.e., plea and sentencing transcripts, we believe, for the reasons stated above, that the packet provided in the instant case was more than sufficient to conclude that the separately numbered convictions were separately brought and tried. Hence, imposition of two consecutive five-year terms is appropriate.
III. DISPOSITION
The trial court is directed to strike one of the two 5-year prior serious felony conviction enhancements imposed for defendant’s conviction in case No. RIF082423. The trial court is directed to deliver a certified copy of the corrected minute order and abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.
We concur: Hollenhorst, Acting P.J., Richli, J.