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Court of Appeal, First District, Division 3, California.

The PEOPLE, Plaintiff and Respondent, v. Robert Hugh COLE, Defendant and Appellant.

No. A072755.

Decided: April 30, 1997

Ruth Spear, Berkely, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Thomas A. Brady and René A. Chacón, Deputy Attorneys General, for plaintiff and respondent.

Here, we reject defendant's claims that he was sentenced in violation of Penal Code 1 section 654, that the court erred in sentencing him under the “Three Strikes” law (§ 1170.12), and that his award of conduct credits violates the equal protection guarantee of the federal and state Constitutions.   However, we agree there was insufficient evidence that two prior serious felony convictions were “brought” separately for purposes of the section 667, subdivision (a)(1) enhancement.   We remand for retrial on that matter or the preparation of an amended abstract of judgment.

Procedural History

Defendant was convicted of attempted robbery, assault with a firearm, and possession of a firearm by a felon.   Additionally, the jury found he had personally used a firearm in the course of the attempted robbery and assault.   The court found defendant had suffered six prior prison commitments alleged under section 667.5, subdivision (b);  two prior serious felonies alleged under section 667, subdivision (a);  and six prior serious felonies alleged as strikes under section 1170.12, subdivision (b).   Pursuant to section 1170.12, subdivision (c), the court sentenced defendant to a term of 25 years to life for the attempted robbery, plus a 2-year enhancement for the use of a firearm.   The court imposed the same sentence for the assault with a firearm and use enhancement but stayed that sentence under section 654.   It imposed a consecutive term of 25 years to life for the possession of a firearm by a felon.   Finally, the court added a five-year enhancement for each of defendant's two prior serious felony convictions, for a total term of sixty-two years to life in prison.


Wearing a ski mask, defendant used a gun while attempting to rob a restaurant.   He fled from the scene in a car driven by his brother, William Miller.   Within a few minutes, the car was stopped by police.   No gun was found in the car, but one was recovered at a point along the car's path from the restaurant.   The arresting officer had seen the car slow down in that area during the pursuit.   Defendant displayed no signs of intoxication when arrested.

At trial, Miller, who had previously pled guilty to attempted robbery, testified that he was the one who had actually tried to rob the restaurant.   He claimed defendant had been drinking and was asleep in the car at the time.   Miller also claimed the gun that was recovered belonged to him.   He said he used it in the attempted robbery and discarded it when he saw the police car behind him.   Nick Ostoich, a friend of the brothers, testified to seeing Miller in possession of the gun earlier on the evening of the crime.   Ostoich also testified that defendant was with his brother and was drunk.


I. Alleged Violation of Section 654**

II. Sufficiency of Evidence to Prove Prior Serious Felony Convictions Were Brought and Tried Separately

In Contra Costa Superior Court case No. 24532, defendant was charged with two counts of robbery, two counts of assault with a deadly weapon, and one count of being a felon in possession of a firearm.   In Contra Costa Superior Court case No. 24531, defendant was charged with two counts of first degree burglary, four counts of second degree burglary, and one count of receiving stolen property.   On September 15, 1980, in a negotiated joint disposition, defendant pled guilty to all of the charges in both dockets for a combined sentence of eight years and four months in prison.   The abstracts of judgment indicate that all the offenses occurred in 1980 and that defendant was awarded 121 days of custody credit on each case.

In the matter before us, the robbery and assault counts of case No. 24532 were the basis of a single allegation of a prior serious felony conviction under section 667, subdivision (a).   The two first degree burglary counts from case No. 24531 were the basis of a second prior serious felony allegation under section 667, subdivision (a).5  The trial court found both allegations true and imposed two separate five-year enhancements, over defendant's objection that the prior convictions had not been brought and tried separately as required by section 667, subdivision (a)(1).

Defendant now contends the evidence was insufficient to support a finding that the prior convictions were brought and tried separately.   The evidence presented in the trial court consisted of the abstracts of judgment for each docket and the transcript of defendant's plea and sentence in those matters.   We review the record below to determine the sufficiency of the evidence to support the trial court's implied finding that the prior convictions were both brought and tried separately.  (People v. Wiley (1995) 9 Cal.4th 580, 592 & fn. 7, 38 Cal.Rptr.2d 347, 889 P.2d 541;  People v. Harris (1987) 192 Cal.App.3d 1197, 1201, 238 Cal.Rptr. 31, review den.)

A. Were the Prior Convictions Tried Separately?

 Under the law, these matters were tried separately.   The requirement that prior charges have been tried separately does not require actual trials.   For purposes of this statute, there is no distinction between a guilty plea and a trial on the merits.  (People v. Harris, supra, 192 Cal.App.3d at p. 1201, 238 Cal.Rptr. 31.)   Various appellate court cases have considered whether prior convictions were tried separately.

In People v. Lewis (1987) 191 Cal.App.3d 1288, 237 Cal.Rptr. 64, the defendant was charged in a multiple count felony information.   He was found incompetent to stand trial and committed to a state hospital.   He escaped from the hospital and was arrested after committing new crimes, which formed the basis of a second felony information.   The two informations were eventually resolved by a single plea bargain in which the defendant received concurrent sentences.   The cases were never consolidated.  (Id. at pp. 1299-1300, 237 Cal.Rptr. 64.)   The appellate court upheld the trial court's imposition of separate five-year enhancements, determining that the prior convictions had been brought and tried separately.  (Id. at p. 1301, 237 Cal.Rptr. 64.)

In People v. Harris, supra, the appellate record established that, on a single occasion, the defendant pled guilty to two separate robberies in separate cases and was given concurrent sentences.  (192 Cal.App.3d at pp. 1200, 1202, 238 Cal.Rptr. 31.)   The appellate court concluded:  “Absent a showing that the two underlying actions were consolidated or otherwise tried together as one case, there is no basis to conclude that they were tried together.”  (Id. at p. 1203, 238 Cal.Rptr. 31.)

In People v. Deay (1987) 194 Cal.App.3d 280, 286, 239 Cal.Rptr. 406, the defendant pled guilty in a single municipal court proceeding to two counts of burglary.   The case was certified to the superior court, where judgment was entered on both counts in a single proceeding.   The Third District concluded the prior convictions had not been brought and tried separately.  (Id. at p. 290, 239 Cal.Rptr. 406.)   In a footnote, the court noted the fact that the defendant's convictions occurred under one case number was evidence they had not been tried separately, though it was not necessarily dispositive of that question.  (Id. at pp. 289-290, fn. 6, 239 Cal.Rptr. 406.) The court then went on to add, in dictum, that if the convictions had had separate case numbers, that fact would not necessarily establish they had been tried separately:  “In our view, and consistent with its purpose, section 667 contemplates temporal rather than administrative separateness.”  (Ibid.)

In July 1989, the Supreme Court decided In re Harris (1989) 49 Cal.3d 131, 260 Cal.Rptr. 288, 775 P.2d 1057, granting a petition for writ of habeas corpus by the same defendant denied appellate relief in People v. Harris, supra, 192 Cal.App.3d 1197, 238 Cal.Rptr. 31.   The Supreme Court considered a more extensive record by way of the petition than the appellate court had before it on appeal.   The record before the Supreme Court demonstrated that the defendant's two prior convictions had been initiated in a single complaint and, thereafter, were subject to a single preliminary hearing.   However, two separate informations were filed in the superior court.   The Attorney General argued that the matters were “brought” separately so long as two separate informations were filed.  (49 Cal.3d at p. 134, 260 Cal.Rptr. 288, 775 P.2d 1057.)   The court disagreed and held that the bringing of charges referred to the filing of the complaint in municipal court.   What is required is that the “․ underlying proceedings must have been formally distinct, from filing to adjudication of guilt.”  (Id. at p. 136, 260 Cal.Rptr. 288, 775 P.2d 1057.)

In People v. Thomas (1990) 219 Cal.App.3d 134, 267 Cal.Rptr. 908, the defendant was held to answer on one felony complaint.   Thereafter, a second felony complaint was filed on different charges.   He was held to answer in the second complaint only after trial had begun in the superior court on the first complaint.   Before that trial concluded, both felony informations were resolved by a single negotiated disposition and sentencing proceeding.  (Id. at pp. 145-146, 267 Cal.Rptr. 908.)   The appellate court distinguished People v. Deay, supra, 194 Cal.App.3d 280, 239 Cal.Rptr. 406 on its facts and concluded “․ where the record shows more than one proceeding was separately initiated and not consolidated, as here, the fact the defendant pled guilty in the cases at the same time and was sentenced on the same day cannot overcome a finding the cases were tried separately.”  (Thomas, supra, at p. 147, 267 Cal.Rptr. 908.)

In People v. Gonzales (1990) 220 Cal.App.3d 134, 269 Cal.Rptr. 221, the defendant was charged with burglary in a felony complaint.   Almost a month later, he was charged in a second complaint with a separate burglary.   The matters were resolved in a single plea proceeding.   By way of negotiated disposition, the defendant received consecutive sentences totaling three years and four months.   Until entry of his plea, the defendant had been represented by different counsel in each case.   The court referred to the cases distinctly and certified them to the superior court under separate docket numbers.   There was no evidence the matters were consolidated, and time credits were awarded separately.  (Id. at pp. 138-139, 269 Cal.Rptr. 221.)   Gonzales argued there had been a de facto consolidation of the prior proceedings.  (Id. at p. 136, 269 Cal.Rptr. 221.)   The appellate court disagreed.   In doing so, the court rejected the emphasis upon temporal separateness mentioned in People v. Deay, supra, 194 Cal.App.3d at page 290, footnote 6, 239 Cal.Rptr. 406:  “Furthermore, although the guilty pleas and the imposition of sentence were contemporaneous, we do not believe that temporal togetherness alone is sufficient to defeat the demonstrated intention of the parties and the court.   The fact that both cases were called for hearing in municipal court on the same day is not evidence of a motion or grant of consolidation.   Rather, it is a product of the practical realities of an overburdened criminal court system.”   (Gonzales, supra, at p. 140, 269 Cal.Rptr. 221.)

In People v. Smith (1992) 7 Cal.App.4th 1184, 9 Cal.Rptr.2d 491, the defendant's contention that his prior convictions had not been tried separately involved three pairs of prior convictions.   The first pair were separate actions for which pleas were entered and probationary sentences imposed on the same dates.   The second pair involved consecutively numbered felony complaints.   The defendant pled guilty to charges from both complaints on the same day and received consecutive sentences.   The third pair also involved separate complaints.   The defendant pled guilty to charges from each complaint on the same day and received concurrent sentences.  (Id. at pp. 1189-1190 & fn. 4, 9 Cal.Rptr.2d 491.) The appellate court concluded each pair constituted prior convictions tried separately.   In doing so, the court rejected the test of temporal separateness referred to in People v. Deay, supra, 194 Cal.App.3d at page 290, footnote 6, 239 Cal.Rptr. 406, and applied the “formally distinct” test set out by the Supreme Court in In re Harris, supra, 49 Cal.3d at page 136, 260 Cal.Rptr. 288, 775 P.2d 1057.  (Smith, supra, at pp. 1192-1193, 9 Cal.Rptr.2d 491.)

Most recently, in People v. Wagner (1994) 21 Cal.App.4th 729, 26 Cal.Rptr.2d 383, the Third District had an opportunity to revisit this question for the first time since its opinion in People v. Deay, supra, 194 Cal.App.3d 280, 239 Cal.Rptr. 406.   In Wagner, the prosecution proved the two prior burglary convictions at issue.   The burglaries had been committed three weeks apart and charged in two separate felony complaints.   The complaints were not numbered consecutively.   In a single municipal court proceeding, the defendant pled guilty to both burglaries.   The defendant was promised a maximum of five years and four months in prison, calculated as the midterm for one burglary and one-third the midterm for the other.   The court repeatedly distinguished between the two cases, although the defendant was given a single constitutional admonishment.   The cases were certified to the superior court and given consecutive superior court docket numbers.   In the superior court, the defendant was sentenced separately for each case.   Custody credits were awarded and restitution fines imposed in each case separately.   (Id. at pp. 731-732, 26 Cal.Rptr.2d 383.)   A majority of the Third District panel concluded the convictions were brought and tried separately.  (Id. at p. 737, 26 Cal.Rptr.2d 383.)   The majority wrote:  “Th[e] footnote language in Deay, in light of In re Harris, should not be read to require that multiple offenses resolved by plea be adjudicated in separate proceedings at separate times to qualify as separately tried under section 667.   Different case numbers or 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.  [Citation.]”  (Ibid., italics in original.) 6

 With this extensive background in mind, we turn to the facts of the case before us.   Here, defendant pled guilty in a single superior court proceeding to two separate, though consecutively numbered, dockets.   The cases were not consolidated, but defendant was represented by the same counsel in each.   Defendant was given a single constitutional admonishment and received consecutive sentences.   However, he was given custody credit in each case.   The court repeatedly referred to the cases individually and took the pleas separately.   With the exception of dictum in People v. Deay, supra, 194 Cal.App.3d at page 290, footnote 6, 239 Cal.Rptr. 406, the foregoing authorities establish that defendant's prior convictions were tried separately for the purposes of section 667, subdivision (a)(1).

B. Were the Prior Convictions Brought Separately?

As noted above, the Supreme Court in In re Harris, supra, 49 Cal.3d at page 136, 260 Cal.Rptr. 288, 775 P.2d 1057 concluded that charges filed in separate informations were not “brought separately” for the purposes of section 667, subdivision (a)(1) if they were initially charged in a single complaint.   In People v. Wiley, supra, 9 Cal.4th 580, 38 Cal.Rptr.2d 347, 889 P.2d 541, the court considered under what circumstances the prosecution was required to prove that the charges were brought in separate complaints.   There, the evidence before the trial court was that the prior convictions were prosecuted in separate informations in the superior court, but evidence proving the charges originated in separate municipal court complaints was not presented:  “It is apparent that the prosecution need not always produce the complaints filed in municipal court in order to prove that charges were brought separately within the meaning of section 667(a)(1).   If, for example, the alleged prior convictions occurred several months or years apart, or arose in different counties or states, the trial court could draw the reasonable inference that the charges leading to those prior convictions had been brought in separate complaints.   The present case presents a more difficult situation, because the informations were filed in the same county, defendant was convicted in court trials occurring only one day apart, and he was sentenced in both cases during the same court session.   Under these circumstances, the prosecution would have been well advised to produce the complaints, if possible.   Had the prosecution done so in the present case, much effort would have been avoided both by the parties and the courts.  [¶] We conclude, however, that because the separate informations from which the alleged prior convictions arose bear case numbers that differ significantly (Nos. 27767 and 27902), the trial court reasonably could infer that the charges had been initiated in separate complaints.   Had the charges been filed in a single complaint, followed by a single preliminary hearing, but thereafter been prosecuted in superior court under separate informations, as in Harris, we would expect those informations to bear case numbers that are successive, or nearly so.   [Citation.]  The circumstance that the informations in the present case bear case numbers that differ significantly is sufficient, in the absence of contrary evidence, to support a reasonable inference that the charges were filed in separate complaints and, therefore, were separately brought within the meaning of section 667(a)(1).”  (Id. at p. 593, 38 Cal.Rptr.2d 347, 889 P.2d 541, fn. omitted.)

 As in Wiley, the evidence presented here did not include the municipal court complaint or complaints.   In the superior court, defendant pled guilty in a single proceeding to consecutively numbered felony informations.   Entries on the abstracts of judgment showing all the crimes occurred in 1980 constitute the only evidence of when the crimes were committed.   Consequently, we may not reasonably infer the charges were instituted by separate complaints.   This evidence was not sufficient to establish that defendant's prior convictions were brought separately.   Accordingly, the imposition of two five-year enhancements may not stand.

The question presents itself whether, on remand, the prosecution is precluded by the principle of double jeopardy from attempting to prove that the prior convictions were brought separately.  (U.S. Const., 5th Amend.;   Cal. Const., art.   I, § 15.) 7  At our request, the parties submitted supplemental briefing on this issue.

Ordinarily, when a conviction is reversed for insufficient evidence, the prosecution is not entitled to a retrial.  (Burks v. United States (1978) 437 U.S. 1, 11, 98 S.Ct. 2141, 2147, 57 L.Ed.2d 1.)   However, neither the United States nor the California Supreme Court has resolved whether the prosecution is similarly barred when the result of a noncapital sentencing proceeding is reversed for insufficient evidence.  (Caspari v. Bohlen (1994) 510 U.S. 383, 397, 114 S.Ct. 948, 957, 127 L.Ed.2d 236;  People v. Wiley, supra, 9 Cal.4th at p. 593, fn. 8, 38 Cal.Rptr.2d 347, 889 P.2d 541.)

In United States v. DiFrancesco (1980) 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (DiFrancesco ), the court affirmed the government's statutory right to appeal a sentence imposed under the federal “dangerous special offender” provisions (18 U.S.C. former §§ 3575-3576).   Under those provisions, if the prosecution proves by a preponderance of the evidence that the defendant is a dangerous special offender, the court is required to impose a prison term of up to 25 years.  (18 U.S.C. former § 3575(b).)   The Supreme Court first concluded that the double jeopardy clause is not a complete barrier to appeal by the prosecution in a criminal case.  (DiFrancesco, supra, at p. 132, 101 S.Ct. at pp. 434-435.)   It then considered whether a criminal sentence is to be accorded the same finality as an acquittal of underlying charges.   The court concluded that “neither the history of sentencing practices, nor the pertinent rulings of this Court, nor even considerations of double jeopardy policy support such an equation.”  (Ibid.) The court continued:  “We have noted above the basic design of the double jeopardy provision, that is, as a bar against repeated attempts to convict, with consequent subjection of the defendant to embarrassment, expense, anxiety, and insecurity, and the possibility that he may be found guilty even though innocent.   These considerations, however, have no significant application to the prosecution's statutorily granted right to review a sentence.   This limited appeal does not involve a retrial or approximate the ordeal of a trial on the basic issue of guilt or innocence.   Under [18 U.S.C.] former § 3576, the appeal is to be taken promptly and is essentially on the record of the sentencing court․  Furthermore, a sentence is characteristically determined in large part on the basis of information, such as the presentence report, developed outside the courtroom.   It is purely a judicial determination, and much that goes into it is the result of inquiry that is nonadversary in nature.”  (Id. at pp. 136-137, 101 S.Ct. at p. 437.)

In Bullington v. Missouri (1981) 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (Bullington ), the defendant was initially sentenced to life in prison after the jury rejected a death sentence.  (Id. at pp. 435-436, 101 S.Ct. at p. 1856.)   The Supreme Court considered whether the double jeopardy clause precluded the prosecution from seeking a death sentence on retrial after the defendant's initial conviction was overturned.   According to Missouri's capital sentencing scheme, following a guilty verdict, the same jury must determine whether various aggravating and mitigating circumstances have been established by the evidence presented at the guilt phase and additional evidence presented at the penalty phase.   The jury is permitted to impose a penalty of death only if it determines beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating.  (Id. at pp. 432-434 & fn. 4, 101 S.Ct. at pp. 1854-1856 & fn. 4.) “The procedure that resulted in the imposition of the sentence of life imprisonment upon petitioner Bullington at his first trial ․ differs significantly from those employed in any of the Court's cases where the Double Jeopardy Clause has been held inapplicable to sentencing.   The jury in this case was not given unbounded discretion to select an appropriate punishment from a wide range authorized by statute.   Rather, a separate hearing was required and was held, and the jury was presented both a choice between two alternatives and standards to guide the making of that choice.   Nor did the prosecution simply recommend what it felt to be an appropriate punishment.   It undertook the burden of establishing certain facts beyond a reasonable doubt in its quest to obtain the harsher of the two alternative verdicts.   The presentence hearing resembled and, indeed, in all relevant respects was like the immediately preceding trial on the issue of guilt or innocence.   It was itself a trial on the issue of punishment so precisely defined by the Missouri statutes.”  (Id. at p. 438, 101 S.Ct. at p. 1858, fn. omitted.)   The court distinguished the sentencing scheme at issue in DiFrancesco by noting that the sentencing choices available to the federal judge in that case were far broader than the narrow choice put to the jury under the Missouri statutes and that the federal judge was allowed to make his decision on a preponderance of the evidence rather than the beyond a reasonable doubt standard applicable under the Missouri statutes.8  (Bullington, supra, at pp. 440-441, 101 S.Ct. at p. 1859.)  “By enacting a capital sentencing procedure that resembles a trial on the issue of guilt or innocence ․ Missouri explicitly requires the jury to determine whether the prosecution has ‘proved its case.’ ”  (Id. at p. 444, 101 S.Ct. at p. 1861, italics in original.)   On that basis, the court concluded the double jeopardy clause precluded the prosecution from seeking a death sentence upon retrial.  (Id. at p. 446, 101 S.Ct. at p. 1862.)

In Caspari v. Bohlen, supra, 510 U.S. 383, 114 S.Ct. 948, the defendant was originally sentenced under Missouri's habitual offender statute.   Under the applicable portion of that statute, if the trial court determines the defendant is a persistent offender based upon evidence of prior convictions, the defendant is sentenced by the court and not the jury.   In either case, however, the sentencing range is the same.  (Id. at pp. 386-387, 114 S.Ct. at pp. 951-952.)   On appeal, Bohlen's sentence was overturned for failure to present evidence of the requisite prior convictions.   On remand, sufficient evidence was presented.   Bohlen was again found to be a persistent offender and was sentenced by the court.   Following the exhaustion of state remedies, the federal court of appeals granted his petition for habeas corpus, holding that allowing the prosecution a second opportunity to prove Bohlen's prior convictions violated the double jeopardy clause.  (Id. at pp. 387-388, 114 S.Ct. at p. 952.)

The Supreme Court reversed, holding that the application of the double jeopardy clause in these circumstances was, at best, a new rule of law.   Furthermore, a federal court is not permitted to grant habeas corpus relief to a state prisoner on the basis of a new rule of law announced after the defendant's conviction and sentence have become final.  (Caspari v. Bohlen, supra, 510 U.S. at pp. 389, 396-397, 114 S.Ct. at pp. 953, 956-957.) 9  After reviewing DiFrancesco and Bullington, as well as other precedents, the court wrote:  “While our cases may not have foreclosed the application of the Double Jeopardy Clause to noncapital sentencing, neither did any of them apply the Clause in that context.”  (Caspari, supra, at p. 393, 114 S.Ct. at p. 955.)   Therefore, because the rule of law was not dictated by existing precedent at the time of Bohlen's sentencing, federal habeas corpus relief was unavailable to him.  (Ibid.) In concluding that such a rule was not dictated by existing precedent, the court noted a split in authority among the federal circuit courts and various state courts.  (Id. at pp. 393-394, 114 S.Ct. at p. 955.)   The court also noted that its own precedents continued to leave this question unresolved.  (Id. at p. 395, 114 S.Ct. at p. 956, citing Lockhart v. Nelson (1988) 488 U.S. 33, 37-38, fn. 6, 109 S.Ct. 285, 289, fn. 6, 102 L.Ed.2d 265 [reserving question of application of double jeopardy clause to noncapital sentencing].)   Finally, the court concluded that denying Bohlen habeas corpus relief did not undermine the fundamental fairness or the accuracy of the proceeding:  “Persistent-offender status is a fact objectively ascertainable on the basis of readily available evidence.   Either a defendant has the requisite number of prior convictions, or he does not.   Subjecting him to a second proceeding at which the State has the opportunity to show those convictions is not unfair and will enhance the accuracy of the proceeding by ensuring that the determination is made on the basis of competent evidence.”   (Caspari, supra, at p. 396, 114 S.Ct. at pp. 956-957.)

Thus, the United States Supreme Court has not specifically ruled on this question.   As noted above, other courts have done so.   Those courts that have concluded the double jeopardy clause is inapplicable to a particular sentencing proceeding have been influenced by the following factors:  (1) the sentencing authority's determination is not based, in any part, upon the facts of the underlying offense, as in a capital sentencing proceeding;  instead, that determination is influenced by whether the defendant has previously been convicted of certain crimes (Linam v. Griffin (10th Cir.1982) 685 F.2d 369, 375;  People v. Sailor (1985) 65 N.Y.2d 224, 491 N.Y.S.2d 112, 118-119, 480 N.E.2d 701, 707-708);  (2) lesser procedural protections at the sentencing hearing, such as a reduced burden of proof, suggest the proceeding is not a quasi-trial (Linam, supra, at p. 375;  Sailor, supra, 491 N.Y.S.2d at pp. 120-121, 480 N.E.2d at p. 709;  compare State v. Hennings (1983) 100 Wash.2d 379, 670 P.2d 256, 259-260 [requirement of proof beyond a reasonable doubt at sentencing stage suggests double jeopardy applies] );  and (3) the broad discretion left to the sentencing authority is similar to traditional sentencing proceedings, unlike the circumscribed discretion afforded in a capital proceeding (Sailor, supra, 491 N.Y.S.2d at pp. 119-121, 480 N.E.2d at pp. 708-709;  compare State v. Hennings, supra, 670 P.2d at p. 260 [limited options of sentencing authority upon proof of prior convictions analogized to capital sentencing proceeding] ).   When the sentencing authority is given only two sentencing options, the selection of the lesser punishment at the initial sentencing proceeding suggests a failure of the prosecution to prove the defendant merited the greater.   This implicit failure of proof has been described as an acquittal of “ ‘whatever was necessary to impose’ ” the greater punishment.  (Bullington, supra, 451 U.S. at p. 445, 101 S.Ct. at p. 1861.)

 We apply the foregoing criteria to the case at hand.   Here, defendant's prior serious felony convictions were proven at a bifurcated proceeding.   Additionally, the evidence of his guilt of the substantive offenses was irrelevant to the discrete question whether he had previously committed the prior offenses alleged.   Thus, unlike the penalty phase of a capital proceeding, the enhancement allegations at issue here were distinct from the underlying offenses.

Second, defendant had a statutory right to a jury trial to determine whether or not he committed the prior offenses. (§§ 1025, 1158.)   Although he waived his right to a jury, he availed himself of the other procedural protections inherent in a court trial, including the requirement of proof beyond a reasonable doubt.  (People v. Brucker (1983) 148 Cal.App.3d 230, 241, 195 Cal.Rptr. 808 [prosecution must prove prior convictions beyond a reasonable doubt].)   However, the right to jury trial is not applicable to the legal question of whether the priors were brought separately.   As the California Supreme Court noted in People v. Wiley, supra:  “․ [T]he information alleged, and the jury found true, that defendant had suffered two prior convictions of serious felonies under section 667(a).   The jury thus determined ‘the wrongful criminal conduct for which punishment is being imposed,’ ․ The additional question whether the charges leading to these two prior convictions had been ‘brought and tried separately’ within the meaning of section 667(a)(1) properly was a matter for the court, because that question is largely legal in nature․  Although there are, of course, some underlying ‘facts' that are relevant to the determination as to whether charges have been ‘brought and tried separately,’ such as the filing of charges either in a single complaint or multiple complaints, such facts generally are readily ascertainable upon an examination of court documents.   This is the type of inquiry traditionally performed by judges as part of the sentencing function.”  (9 Cal.4th at p. 590, 38 Cal.Rptr.2d 347, 889 P.2d 541.)   Therefore, as to the issue upon which we reverse the section 667, subdivision (a) enhancements, defendant was not entitled to procedural protections like those available in the trial of his guilt.

Finally, the sentencing authority was given only two options here, i.e., finding the prior convictions true or false.   A true finding mandated the imposition of the five-year enhancements. (§ 1385, subd. (b);  People v. Valencia (1989) 207 Cal.App.3d 1042, 1045, 255 Cal.Rptr. 180.)   Here, however, the court correctly determined defendant had, in fact, committed the prior offenses.   Moreover, the imposition of a five-year enhancement is based upon a straightforward finding that the defendant has suffered certain felony convictions.   It does not involve a particular evaluation of the underlying facts followed by a subjective determination whether the defendant merits a particular punishment.   Under these circumstances, the prosecution's failure to present adequate evidence that the prior charges were brought separately is not equivalent to an acquittal of a greater punishment.

We do not decide here that the double jeopardy clause is inapplicable to all noncapital sentencing proceedings.   We hold only that when the finder of fact correctly determines that the defendant has suffered multiple prior serious felony convictions, but the prosecution has failed to present sufficient evidence on the largely legal question whether those prior convictions were brought separately, a relitigation of that issue on remand is not prohibited by the double jeopardy clause.



The judgment is affirmed, except for the court's imposition of two five-year enhancements under section 667, subdivision (a).   The second of those enhancements is stricken, and the matter is remanded for retrial on the issue of whether defendant's prior serious felony convictions were “brought” separately.   Alternatively, if the prosecution elects not to retry that issue, the court may prepare an amended abstract of judgment.   In all other respects, defendant's conviction and sentence are affirmed.


FN1. All further statutory references are to the Penal Code..  FN1. All further statutory references are to the Penal Code.

FOOTNOTE.   See footnote *, ante.

5.   All six offenses were alleged as strikes under section 1170.12, subdivision (b).   The question whether prior felony convictions were “brought and tried separately” is crucial to the imposition of multiple enhancements under section 667, subdivision (a)(1).   The Three Strikes law, however, does not contain a similar requirement.  (People v. Superior Court (Arevalos) (1996) 41 Cal.App.4th 908, 915-916, 48 Cal.Rptr.2d 833;  People v. Allison (1995) 41 Cal.App.4th 841, 844-845, 48 Cal.Rptr.2d 756.)

6.   Justice Blease, who had joined the opinion in Deay, dissented in Wagner, opining that the “formally distinct” test of In re Harris applied only to the question of whether the prior charges had been separately brought not whether they had been separately tried.  (See People v. Wagner, supra, 21 Cal.App.4th at p. 741, 26 Cal.Rptr.2d 383 (dis. opn. of Blease, J.).)   Indeed, in In re Harris, the court's holding was that the prior charges had not been separately brought.  (49 Cal.3d at p. 136, 260 Cal.Rptr. 288, 775 P.2d 1057.)   However, in In re Harris, the Supreme Court did not disapprove the appellate court opinion in People v. Harris, supra, 192 Cal.App.3d 1197, 238 Cal.Rptr. 31, which determined that the same prior charges had been separately tried.

7.   The California provision is interpreted coextensively with federal provisions in this area.  (Cal. Const., art.   I, § 24.)

8.   The court also pointed to the fact that the appellate review in DiFrancesco was based upon the record below and was not de novo.   (Bullington, supra, 451 U.S. at p. 440, 101 S.Ct. at p. 1859.)   However, under the federal statute at issue in DiFrancesco, the appellate court was permitted to “affirm the sentence, impose or direct the imposition of any sentence which the sentencing court could originally have imposed, or remand for further sentencing proceedings and imposition of sentence ․”  (18 U.S.C. former § 3576, italics added.)   Thus, although the appellate review is based upon the lower court's record, the statutory scheme contemplates the possibility of a second sentencing proceeding in the trial court.

9.   The court did not determine whether or not the double jeopardy clause was applicable to noncapital sentencing.   Instead, the court concluded that, if the clause is applicable to noncapital sentencing, it would constitute a new rule of law for purposes of the nonretroactivity principle of federal habeas corpus relief.

FOOTNOTE.   See footnote *, ante.

CORRIGAN, Associate Justice.

PHELAN, P.J., and PARRILLI, J., concur.