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Court of Appeal, First District, Division 5, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Romero WILEY, Defendant and Appellant.

No. A056617.

Decided: June 29, 1993

Michael Satris, Bolinas, for defendant and appellant. Daniel E. Lungren, State Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Stan M. Helfman, Supervising Deputy Atty. Gen., and Violet M. Lee, Deputy Atty. Gen., Office of the State Atty. Gen., San Francisco, for plaintiff and respondent.

Romero Wiley appeals his conviction by jury trial of attempted murder (Pen.Code, §§ 187/664),1 assault with a deadly weapon (§ 245, subd. (a)(1)), first degree burglary (§§ 459/460, subd. 1), and second degree burglary.  (§§ 459/460, subd. 2.) 2  Allegations of deadly weapon use (§ 12022, subd. (b)), great bodily injury (§ 12022.7), prior felony convictions (§ 667, subd. (a)), a prior prison term (§ 667.5, subd. (b)), and on-bail allegations (§ 12022.1) were found true.   He raises numerous assignments of error.3



I–V **



The amended information alleged two prior convictions on or about September 27, 1983, for first degree burglary.   Section 667, subdivision (a), provides as follows:  “[A]ny person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any 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.”  (Emphasis ours.)

 Appellant claims the court erred in ruling that the determination of whether his prior convictions were “brought and tried separately” is a question of law for the court.   With respect to the prior conviction allegations the jury was instructed, in relevant part, as follows:  “The defendant has been found guilty of particular offenses, which are serious felonies as a matter of law․  [T]he defendant had previously been twice convicted of First–Degree Burglary, on September 27, 1983․  [¶] You must now determine the truth of these allegations․  [¶] You must consider each of the alleged prior convictions separately.  [¶] The People have the burden of proving the truth of these allegations.  [¶] If you have a reasonable doubt as to whether any such alleged prior conviction is true, you must find the allegation to be not true.”

At a bench conference before the jury's deliberation on the truth of the prior conviction allegations, appellant argued that the jury should also determine whether the prior convictions were brought and tried separately.   The court ruled it was a question of law for it to decide.   At sentencing, the court stated:  “Now, it has been alleged and is found to be true there have been two convictions occurring in September of 1983, in Dockets No. 27902 and 27767, in the files of this court, which are offenses that fall within the provisions of Section 667, [subdivision] (a).”

“Procedures required in California for pleading and proof of prior conviction allegations which affect punishment include the following:  The accusatory pleading must allege a charged prior conviction.   The defendant must be arraigned on and allowed to plead to the charge.   The defendant is entitled to a jury trial and the burden is on the prosecution to prove each element of the charged prior conviction beyond a reasonable doubt.   If the defendant does not admit the prior conviction and is found guilty of the main offense, the trier of fact must also make a special finding on the prior conviction charge.   And if more than one prior conviction is charged, a separate finding must be made as to each one․”  (People v. Hockersmith (1990) 217 Cal.App.3d 968, 973, 266 Cal.Rptr. 380, citations omitted.)

Whether “brought and tried separately” is a factual element of a prior serious felony allegation which must be determined by the jury appears to be a question of first impression.   Section 667 itself does not provide the answer, and we have found none in the case law and commentaries.

“Preliminary questions of fact, the constitutionality and construction of statutes, questions falling properly within the province of judicial notice, disputed facts on motion, interpretation of the pleadings, and the subject matter of the charge, are for the court.   Applying a given rule to stipulated facts is also a question of law for the court.   Where the facts are wholly undisputed and admit of no conflicting inferences, the question is one of law for the court.   Furthermore, when the facts are such that reasonable minds can draw but one conclusion, it is the duty of the court to decide the question and not to require the jury to deliberate upon evidence from which they can draw but one possible conclusion.”  (75A Am.Jur.2d, Trial, § 717, p. 344.)

 For purposes of section 667, subdivision (a), whether the prior offense was a felony, and whether it constituted a serious felony pursuant to section 1192.7, subdivision (c), involves the construction of statutes and interpretation of pleadings and legal proceedings, and is thus a question of law.   Once the court makes such determination, the only factual question for the jury is whether the defendant is the person who committed the prior felony.   The question of whether multiple prior serious felonies were brought and tried separately involves the legal interpretation of prior legal proceedings, and merely describes the legal circumstances in which the convictions occurred, thereby permitting the court to impose separate punishment for each prior serious felony.   Consequently, the “brought and tried separately” element is a question of law for the court and there was no instructional error


 Appellant's prior convictions were proven through the introduction of an abstract of judgment showing that they occurred on successive days under separate docket numbers.   At our request the parties submitted additional briefing on the issue of the sufficiency of the evidence to establish whether the priors were brought and tried separately, as defined by In re Harris (1989) 49 Cal.3d 131, 260 Cal.Rptr. 288, 775 P.2d 1057.

In Harris, the defendant's priors resulted from separate informations filed in the superior court, but originated from a single preliminary hearing on a single criminal complaint initiated in the magistrate's court.   The Supreme Court held that the “brought and tried separately” language of section 667 requires that “the underlying proceedings must have been formally distinct, from filing to adjudication of guilt.”  (In re Harris, supra, 49 Cal.3d at p. 136, 260 Cal.Rptr. 288, 775 P.2d 1057.)

The question before us is whether the evidence in the instant case is sufficient under Harris to establish that the prior convictions were brought and tried separately.   The People rely on People v. Gonzales (1990) 220 Cal.App.3d 134, 269 Cal.Rptr. 221 and People v. Smith (1992) 7 Cal.App. 4th 1184, 9 Cal.Rptr.2d 491 for the proposition that the courts have not given the Harris requirement of “formally distinct” proceedings “a narrow and restrictive interpretation.”   In Gonzales the defendant's two prior convictions were initiated by separate complaints filed in the municipal court, charging separate residential burglaries.   Appellant entered guilty pleas to both charges in the municipal court, the cases were certified to superior court under different case numbers, and he was sentenced separately for both offenses on the same date.   The Court of Appeal rejected defendant's contention of a “de facto consolidation,” and held that they were brought and tried separately for purposes of section 667.  (People v. Gonzales, supra, at pp. 140–141, 269 Cal.Rptr. 221.)

In Smith the defendant had seven prior convictions of residential burglary for purposes of section 667.   Defendant contended that “although none of the cases was consolidated, there was a common date for certain criminal proceedings in connection with the charges, including the date of his entry of guilty pleas and the date of sentencing.”  (People v. Smith, supra, 7 Cal.App.4th at p. 1189, 9 Cal.Rptr.2d 491.)   The Court of Appeal held that the “same date for accepting the pleas in these nonconsolidated cases is of no significance for purposes of section 667․  [T]he separately brought and tried limitation of section 667, subdivision (a) does not bar multiple enhancements where convictions are based on unrelated counts of different accusatory pleadings.”  (Id., at p. 1191, 9 Cal.Rptr.2d 491 citations and internal quotation marks omitted.)   The court “reject[ed] the notion that calendaring and hearing more than one case per defendant per day results in ‘de facto’ consolidation.”  (Ibid., internal quotation marks omitted.)

In People v. Thomas (1990) 219 Cal.App.3d 134, 267 Cal.Rptr. 908, the court similarly ruled that the fact that guilty pleas were accepted on the same date, and sentences imposed on the same date on charges that were separately initiated and prosecuted, did not violate the “formally distinct” mandate of Harris.

The factor that distinguishes Gonzales, Smith and Thomas from the instant case is that in each of those cases it was undisputed that the charges were separately initiated by criminal complaint in the municipal court, and never consolidated.   In the instant case, there is no direct evidence regarding the commencement of the proceedings leading to the prior convictions.

 The elements of a criminal offense may be proven by either direct or circumstantial evidence, or by inference.  (People v. Cole (1985) 165 Cal.App.3d 41, 48, 211 Cal.Rptr. 242;  see CALJIC 2.00.)  “An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action.”   (Evid.Code, § 600, subd. (b).)  Thus, the specific inquiry here is whether it may logically and reasonably be deduced that appellant's prior convictions were “formally distinct, from filing,” i.e., initiated by separate criminal complaints or indictments.

As authority for answering this specific inquiry affirmatively, the People rely on People v. Castillo (1990) 217 Cal.App.3d 1020, 266 Cal.Rptr. 271, People v. Crockett (1990) 222 Cal.App.3d 258, 271 Cal.Rptr. 500 and People v. Elmore (1990) 225 Cal.App.3d 953, 275 Cal.Rptr. 315.   In Castillo, defendant's sentence was enhanced for prior prison terms under section 667.5, subdivision (b), which imposes upon persons convicted of felonies and sentenced to prison, an additional one-year term for each prior separate prison term served.   The enhancement allegations were tried to the court.   The People's documentary evidence supporting the section 667.5 allegation included the abstract of judgment for the second prior showing he was convicted of burglary on February 20, 1980, and sentenced to prison for two years.   Other documents showed he was again convicted of burglary on December 27, 1982, for a burglary committed 19 days earlier.

The Castillo court rejected defendant's contention that the evidence was insufficient to prove his completion of a prior prison term.   It reasoned that “[i]in order for Castillo to have committed this burglary almost three years later, he was necessarily out of custody following his incarceration on the 1980 burglary conviction.   From this evidence, the court could reasonably infer Castillo had served his prison term for the 1980 conviction.   Nothing in the record indicates Castillo escaped from prison or was otherwise released before his sentence had been served.   We conclude the evidence was sufficient to support the [trial] court's finding Castillo served a completed term of imprisonment for his second prior conviction.”  (People v. Castillo, supra, 217 Cal.App.3d at pp. 1024–1025, 266 Cal.Rptr. 271.)

In People v. Crockett, supra, 222 Cal.App.3d at page 263, 271 Cal.Rptr. 500, the Court of Appeal agreed with Castillo “that in an appropriate case an abstract of judgment, along with reasonable inferences from the facts, can provide substantial evidence sufficient to prove defendants served and completed prison terms.”   In support of the defendant's section 667.5, subdivision (b) enhancement, which was tried to the court, were “certified copies of the docket sheets of two cases, along with their respective judicial files, of which the court took judicial notice.   The judicial files contained abstracts of judgments.   These documents showed that in 1987 appellant pled guilty in case No. A573460 to a charge of possessing cocaine, for which he was sentenced to two years on June 5, 1987.   At the time appellant entered the plea in case No. A573460, appellant was in violation of probation in case No. A570608, also a possession of cocaine charge.   When the court accepted his pleas in case No. A573460, the court also revoked appellant's probation in case No. A570608 and sentenced him to state prison for a concurrent three-year term.   The court ordered appellant ‘remanded to the custody of the sheriff of this county to be delivered to the reception and guidance center at Chino, California, to carry out the sentence.’   The abstract of judgment indicated appellant was remanded to the sheriff's custody ‘forthwith.’   Additionally, one court file included an official record from the Department of Justice entitled, ‘Notice of Registration Requirement.’   This document was signed by appellant and dated March 31, 1988.   It indicated appellant was incarcerated and expected to be released on parole on May 30, 1988.”  (Id., at pp. 266–267, 271 Cal.Rptr. 500.)

The Crockett court held this was sufficient to establish that appellant had served and completed a prior prison term.   It noted there was no indication that the defendant escaped or was not released on parole as anticipated.   It cited Evidence Code sections 660 and 664 to support the presumption that the authorities carried out their official duties to incarcerate appellant as ordered.

In Elmore, the trial court sustained two section 667.5, subdivision (b) enhancement allegations against the defendant based on convictions in 1978 and 1983.   The evidence supporting the allegations consisted of the county clerk's files on the two prior convictions, including abstracts of judgment, but no prison records stating that defendant actually served and completed his prior prison terms.   However, defendant testified on the underlying charge that he had been convicted of felonies in 1978, 1981 and 1983, and that he had been in prison in June 1987 and paroled in November 1987—a month before the underlying charge.  (People v. Elmore, supra, 225 Cal.App.3d at p. 957, 275 Cal.Rptr. 315.)

Elmore followed Castillo and Crockett.   It noted that “[a]n abstract of judgment imposing a prison sentence is an order sending a defendant to prison and imposing a duty on the warden to carry out the judgment.   While the state has the burden of proving that a defendant suffered a prior conviction within the meaning of section 667.5, the usual rules of evidence are applicable to assist the prosecution in presenting a prima facie case.   Thus, a court is allowed to make reasonable inferences from the facts presented.   If there is no evidence to the contrary to rebut the statutory presumption, the court may consider the appropriate abstract of judgment and the facts of the particular case, and may use the official duty presumption to find that a defendant served and completed a term of imprisonment.”  (People v. Elmore, supra, 225 Cal.App.3d at p. 959, 275 Cal.Rptr. 315.)

There is contrary authority on the issue of the sufficiency of evidence to prove completion of a prior prison term under section 667.5, subdivision (b).  People v. Green (1982) 134 Cal.App.3d 587, 184 Cal.Rptr. 652 and People v. Jones (1988) 203 Cal.App.3d 456, 249 Cal.Rptr. 840, both held that evidence that a defendant was sentenced and transported to prison was insufficient to prove completion of the term.  Castillo, Crockett and Elmore acknowledged, but declined to follow Green and Jones.

Were we confronted with the same section 667.5, subdivision (b) issues, we would rule in accord with Castillo, Crockett and Elmore that the appropriate inferences could be drawn.   However, unlike the “served” and “completed” issues in those cases, we have no statutory presumption that the charges in the instant case were separately initiated.   The only evidence introduced on the prior felony allegations consisted of a single abstract of judgment from Contra Costa County, stating that on September 26, 1983, appellant was convicted in case number 27767 of first degree burglary in violation of section 459, and was convicted of the same offense in case number 27902 on September 27, 1983.   That same date he was sentenced for both offenses, receiving a four-year term in case number 27767 and a consecutive sixteen-month term in case number 27902.

The record is devoid of any evidence indicating how the prior proceedings originated in the superior court—whether by indictment or information.   Under these circumstances we cannot logically and reasonably infer that the prior convictions were formally distinct from their inception.   Consequently, only one enhancement for the prior convictions can be sustained.



The finding on the on-bail enhancement (§ 12022.1) is reversed.   The sentence is modified to eliminate the term for the section 12022.1 enhancement, and to reflect one five-year enhancement under section 667.   The sentence is further modified to reflect an additional three days' credit.   The superior court shall prepare and transmit an amended abstract of judgment to the Department of Corrections.   The judgment is otherwise affirmed.


1.   Unless otherwise indicated, all further statutory references are to the Penal Code.

2.   Effective January 1, 1992, section 460, subdivisions 1 and 2, was renumbered 460, subdivisions (a) and (b), respectively.

3.   Pursuant to rule 976.1, California Rules of Court, only part VI of this opinion is certified for publication.

FOOTNOTE.   See footnote 3, ante.

FOOTNOTE.   See footnote 3, ante.

FOOTNOTE.   See footnote 3, ante.

HANING, Associate Justice.

PETERSON, P.J., and KING, J., concur.