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The PEOPLE, Plaintiff and Respondent, v. David Anthony MUGICA, Defendant and Appellant.
OPINION
David Anthony Mugica was found guilty of first degree burglary and of having four prior felony convictions. He urges reversal is required due to instructional error. We reject his contentions and affirm.
* * *
An information charged Mugica with one count of residential burglary (Pen.Code, §§ 459, 460, former subd. 1, 461, subd. 1) 1 and alleged he had been previously convicted of four serious felonies (§ 667, subd. (a)).
After a two-day trial, Mugica was convicted on the burglary count.2 The following day, he was tried on the enhancement allegations. The prosecution alleged he had previously suffered four serious felony convictions, however, only the following two prior convictions are relevant to this appeal: (1) a January 5, 1982, conviction for a September 20, 1981, burglary in case number C–48209; (2) a January 5, 1982, conviction for a December 30, 1981, burglary in case number C–48563.
The case files for the two January 5, 1982, priors included separate plea forms, separate felony complaints and separate informations for each conviction. However, a single hearing was held on January 5, 1982, in which Mugica changed his plea to guilty on both cases and was sentenced.
Mugica offered no evidence in his defense, although his attorney argued at the enhancement trial that the evidence was insufficient to establish that the two January 5, 1982, convictions were residential burglaries.
The jury was instructed and subsequently returned with true findings on each of the enhancement allegations. Mugica was sentenced to the upper term of six years on the burglary count and four consecutive five-year terms on the enhancement allegations, for a total of twenty-six years.
I
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․” (Emphasis added.)
With respect to the prior conviction allegations, the jury was instructed, in pertinent part, as follows: “Before you may find the allegations to be true, the following must be proved beyond a reasonable doubt: [¶] that the alleged prior conviction was a residential burglary; [¶] that the defendant was the person who suffered the prior residential burglary conviction. [¶] And you may consider all documents presented to you to make this determination.”
Mugica contends the requirement of section 667, subdivision (a) that the prior conviction be “brought and tried separately” constitutes an element of the offense for which an instruction is required. Because the jury instruction here omitted any reference to that element, he argues he was denied due process and the right to a jury trial on that issue. Not so.
Mugica asserts In re Harris (1989) 49 Cal.3d 131, 260 Cal.Rptr. 288, 775 P.2d 1057 “conclusively established ․ the prosecution has the burden of proving beyond a reasonable doubt that each § 667 conviction was ‘brought and tried separately.’ ” But there the defendant admitted the prior convictions and then the trial court determined the convictions were on charges brought and tried separately. (Id. at p. 133, 260 Cal.Rptr. 288, 775 P.2d 1057.) The court did not discuss anything about the prosecution's burden of proof, not a surprising happenstance since the issue was not raised. (See also People v. Gonzales (1990) 220 Cal.App.3d 134, 136, 269 Cal.Rptr. 221 [brought and tried separately issue raised in the trial court by defendant's motion to strike].)
Thus, whether “brought and tried separately” is an element of a prior serious felony allegation which must be submitted to the jury for determination appears to be a statutory interpretation question of first impression. Section 667 itself does not expressly answer the question. However, former section 644, also a habitual criminal statute, contained analytically indistinguishable language 3 (In re Harris, supra, 49 Cal.3d at pp. 135, 136, 260 Cal.Rptr. 288, 775 P.2d 1057), which was placed among the other terms defining qualifying prior convictions. But in section 667 it was placed after the statement of the additional term to be imposed.4 Movement of the term evidences an intent to delete it as an element to be proved to the trier of fact.5 (See People v. St. Martin (1970) 1 Cal.3d 524, 534–535, 83 Cal.Rptr. 166, 463 P.2d 390 [change in language when statute was reenacted abrogated prior judicial construction]; Verreos v. City and County of San Francisco (1976) 63 Cal.App.3d 86, 99, 133 Cal.Rptr. 649 [material change in statute by amendment implies an intent to change its meaning, particularly where courts have previously interpreted it].) 6 This conclusion is bolstered by the express inclusion of prior prison term requirements within the definition of other enhancements. (See, e.g., §§ 666, 667.7, 667.75; and see Hennigan v. United Pacific Ins. Co. (1975) 53 Cal.App.3d 1, 8, 125 Cal.Rptr. 408 [omission of a word included in similar statutes connotes a different meaning for statute in question].) 7
Neither the courts (In re Harris, supra, 49 Cal.3d 131, 260 Cal.Rptr. 288, 775 P.2d 1057, People v. Gonzales, supra, 220 Cal.App.3d 134, 269 Cal.Rptr. 221), the commentators (see 3 Witkin & Epstein, Cal.Criminal Law (2d ed. 1989) Punishment For Crime, § 1527, pp. 1820–1822), nor the Committee on Standard Jury Instructions, Criminal (CALJIC Nos. 17.25 and 17.26 (5th ed. 1989)) have divined that “brought and tried separately” is an element of the enhancement prescribed by section 667. Although none of these factors are binding upon this court,8 they support our conclusion “brought and tried separately” is not an element.9
II–III **
The judgment is affirmed.
FOOTNOTES
1. All statutory references are to the Penal Code.
2. Mugica does not challenge any aspect of the burglary conviction.
3. “[U]pon charges separately brought and tried․” (Former § 644, repealed by Stats.1976, c. 1139, p. 5136, § 261.5, operative July 1, 1979.)
4. “[A] five-year enhancement for each such prior conviction on charges brought and tried separately․” (§ 667, subd. (a).)
5. The Legislature has the discretion to select the elements of an offense, at least in the absence of a constitutional impediment. (See In re Feiock (1989) 215 Cal.App.3d 141, 146–147, 263 Cal.Rptr. 437.) None are suggested here.
6. Thus, cases such as People v. Collins (1964) 228 Cal.App.2d 460, 464–465, 39 Cal.Rptr. 595 and People v. Figuieredo (1956) 146 Cal.App.2d 807, 808–810, 304 P.2d 161, construing section 644 and holding the prosecution must prove the separate terms beyond a reasonable doubt, are inapposite.
7. Section 667.5 contains language similar to section 667. Mugica contends People v. James (1978) 88 Cal.App.3d 150, 151 Cal.Rptr. 354, which dealt with section 667.5, compels the conclusion that a separate prison term is an element which must be pleaded and proved to the jury. Not so. In James the defendant claimed the findings on the prior felony convictions had to be stricken “because the allegations in the information were not sufficient to support them.” (Id. at p. 161, 151 Cal.Rptr. 354.) The court held, “While the information need not necessarily charge that the defendant served separate sentences if it appears from the record in some manner that such is the fact or if the court has so found, where the record does not so show and the accusation does not so charge, the additional punishment may not be imposed.” (Id. at p. 162, 151 Cal.Rptr. 354, emphasis added.) James is a pleading case and the court was faced with deciding how the issue of separate prison terms is to be decided. However, the language in the holding suggests the court would agree with our conclusion the jury need not decide that issue.
8. As noted, the issue was not presented in Harris or Gonzales.
9. Because we reach this conclusion, Mugica's authority concerning when elements involving a question of law might be taken from the jury is irrelevant. (See People v. Hedgecock (1990) 51 Cal.3d 395, 407–409, 272 Cal.Rptr. 803, 795 P.2d 1260.)
FOOTNOTE. See footnote *, ante.
WALLIN, Associate Justice.
MOORE, Acting P.J., and SONENSHINE, J., concur.
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Docket No: No. G011510.
Decided: September 30, 1992
Court: Court of Appeal, Fourth District, Division 3, California.
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