People v. Cole

Page 221

63 Cal.Rptr.2d 221

Previously published at 54 Cal.App.4th 1061

54 Cal.App.4th 1061, 97 Cal. Daily Op. Serv. 3158,

97 Daily Journal D.A.R. 5519

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

No. A072755.

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

April 30, 1997.

Certified for Partial Publication ^*

Review Granted Aug. 13, 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 Rene A. Chacn, Deputy Attorneys General, for plaintiff and respondent.

CORRIGAN, Associate Justice.

Here, we reject defendant's claims that he was sentenced in violation of PENAL CODE SECTION 654¹, 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.

Facts

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.

Discussion

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...