Filed 1/6/16 P. v. Mitchell CA4/2



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E062512

v.                                                                       (Super.Ct.No. RIF1203662)

MICHAEL WAYNE MITCHELL, JR.,                                             OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Edward D. Webster,

Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant

to art. VI, § 6 of the Cal. Const.) Affirmed in part; reversed in part with directions.

         Kristin A. Erickson, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Meagan Beale

and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.



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                                     INTRODUCTION

       Defendant Michael Wayne Mitchell, Jr., appeals from his conviction pursuant to a

guilty plea to robbery with the use of a dangerous or deadly weapon, a pellet gun (Pen.

Code, §§ 211, 12022, subd. (b)(1), 1192.7, subd. (c)(23)),1 assault with a deadly weapon

(§ 245, subd. (a)(1)), and false imprisonment (§ 236), as well as numerous prior

conviction allegations (§§ 667.5, subd. (b), 667, subds. (a), (c), (e), 1170.12, subd. (c)).

Defendant contends the trial court erred in imposing four separate five-year terms under

section 667, subdivision (a), for prior convictions because three of the prior felonies were

not brought and tried separately.

       The People concede that one of the five-year enhancements must be stricken

because two of the robbery convictions arose from the same incident. We conclude that

two of the enhancements must be stricken because the evidence was insufficient to

establish that three of defendant’s prior convictions resulted from felonies brought and

tried separately.

                      FACTS AND PROCEDURAL BACKGROUND

       The Underlying Crimes

       The facts of the underlying crimes are not relevant to the issues on appeal and will

therefore be set forth summarily. In July 2012, defendant entered a hotel, jumped over

the counter, and pistol-whipped the desk clerk with a pellet gun. He had the clerk open

the register. He then took the $14 that was in the register. He held the gun to the clerk’s


       1   All further statutory references are to the Penal Code unless otherwise indicated.


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head and ordered her to a room in the back of the store, where he disabled the camera

system. He then put her in a bathroom and told her to stay there for 10 minutes. The

clerk heard defendant taking a safe from the store, and when she exited the bathroom, she

saw him loading the safe into his car. The safe contained approximately $1,300. The

next day, officers found a dismantled safe in defendant’s garage and a pellet gun under

his mattress. He confessed to the robbery.

       Defendant entered a plea of guilty to robbery with the use of a dangerous or

deadly weapon, a pellet gun (§§ 211, 12022, subd. (b)(1)—count 1), assault with a deadly

weapon (§ 245, subd. (a)(1)—count 2), and false imprisonment (§ 236—count 3).

       The Prison Term Priors

       The prior convictions were tried separately to the court. The prosecutor

introduced into evidence section 969, subdivision (b), packets from the Department of

Corrections and Rehabilitation. One packet contained an amended abstract of judgment

from case No. CR142830. The abstract indicated defendant had been convicted by jury

verdict in March 1994 of attempted murder and by guilty plea in May 1994 of two

robberies. The trial court in the current matter found those three alleged priors to be true

beyond a reasonable doubt. The trial court also found that defendant had suffered

another prior, a 1986 robbery conviction; defendant does not challenge the five-year

enhancement for that conviction.

       Defendant requested the trial court exercise its discretion to dismiss his strike

priors under People v. Romero (1996) 13 Cal.4th 497. At the hearing on his Romero

motion, defendant provided a letter explaining that the two conviction dates in 1994


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occurred because he was found guilty on attempted murder, but “[t]hey hung on the

211’s, which I pleaded to later.” The trial court denied the Romero motion.

       Sentence

       The trial court sentenced defendant to 25 years to life for each of the three

substantive counts (§§ 211, 245, subd. (a)(1), 236), stayed the sentence for count 2

(§ 654), and ordered that the sentence for count 3 would be concurrent. The trial court

imposed a one-year consecutive enhancement for the weapon use in count 1 (§ 12022,

subd. (b)(1), 1192.7, subd. (c)(23)) and four five-year consecutive enhancements for the

serious prior convictions (§ 667, subd. (a)).

                                        DISCUSSION

       Standard of Review

       When a defendant challenges the sufficiency of the evidence to prove a sentence

enhancement, we review the record in the light most favorable to the judgment to

determine whether a reasonable trier of fact could have found that the prosecution met its

burden of proving each element of the enhancement beyond a reasonable doubt. (People

v. Tenner (1993) 6 Cal.4th 559, 567.)

       Sufficiency of Evidence That Charges Were Brought and Tried Separately

       Section 667, subdivision (a)(1), provides 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.”

“[T]he requirement in section 667 that the predicate charges must have been ‘brought and


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tried separately’ demands that the underlying proceedings must have been formally

distinct, from filing to adjudication of guilt.” (See In re Harris (1989) 49 Cal.3d 131,

136 (Harris).)

       “Due process requires the prosecution to shoulder the burden of proving each

element of a sentence enhancement beyond a reasonable doubt.” (People v. Tenner,

supra, 6 Cal.4th at p. 566.) What is required is that the “. . . underlying proceedings must

have been formally distinct, from filing to adjudication of guilt.” (Harris, supra, 49

Cal.3d at p. 136.) If the charges were made in a single complaint, the court can impose

only a single five-year enhancement. (Id. at pp. 136-137.)

       The People concede that the evidence was insufficient to establish that the two

robbery convictions on May 5, 1994, were brought and tried separately because those

convictions arose from the same incident, and one of the five-year enhancements under

section 667, subdivision (a), must therefore be stricken. The People contend, however,

that the trial court could reasonably infer that defendant’s conviction of attempted murder

on March 11, 1994, was brought and tried separately from those robberies. To support

that argument, they cite People v. Wagner (1994) 21 Cal.App.4th 729 (Wagner) and

People v. Gonzales (1990) 220 Cal.App.3d 134 (Gonzales). We find those cases

distinguishable.

       In Wagner, the defendant’s convictions not only involved separate criminal

incidents, but they also originated in separate complaints. Moreover, the two cases were

distinguished throughout the plea hearing and sentencing hearing, and the defendant was

awarded different custody credits for the separate offenses. (Wagner, supra, 21


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Cal.App.4th at p. 737.) In Gonzales, two cases were filed separately and were separately

numbered, although the defendant entered a plea bargain in both cases on the same date.

(Gonzales, supra, 220 Cal.App.3d at p. 143.) As in Wagner, presentence custody credits

were treated differently for the two offenses. (Gonzales, at p. 143.)

       Here, in contrast, although the convictions apparently involved separate criminal

incidents, no evidence was presented to show that they originated in separate complaints;

indeed, the cases bore the same case number. Unlike in Wagner and Gonzales, no

evidence showed that they were distinguished at the underlying sentencing hearing, and

the amended abstract of judgment does not indicate that different custody credits were

awarded for the separate offenses.

       Thus, while the evidence could support a finding that the cases were tried

separately, it was wholly insufficient to support a finding that they were brought

separately. In that regard, our Supreme Court in Harris has held that if charges were

made in a single complaint, the court can impose only a single five-year enhancement.

(Harris, supra, 49 Cal.3d at pp. 136-137.)

       In People v. Wiley (1995) 9 Cal.4th 580, the court stated that while the prosecution

need not always produce the complaint to establish that charges were brought and tried

separately, it was advisable to do so unless a reasonable inference could be drawn from

other evidence. For example, in that case, when “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,


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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.) No such inference may reasonably be

drawn in the present case when all convictions arose under the same case number. We

therefore conclude that two of the five-year enhancements under section 667,

subdivision (a), must be stricken.

       Proceedings on Remand

       The People assert that we should remand the matter to the trial court for, at the

prosecution’s discretion, retrial on the prior convictions under section 667,

subdivision (a), or resentencing to impose a one-year enhancement under section 667.5,

subdivision (b).

              Retrial

       As the People point out, retrial of prior conviction findings is not barred by double

jeopardy prohibitions when such a finding is reversed for lack of substantial evidence.

(People v. Monge (1997) 16 Cal.4th 826, 839-843.) Thus, retrial is not precluded

“provided that the People, at such retrial, present additional evidence beyond that

previously found to be insufficient.” (People v. Scott (2000) 85 Cal.App.4th 905, 908.)




                                              7
We will therefore remand the matter to allow the People to elect to retry the prior

conviction allegations under section 667, subdivision (a)(1).

              One-year Enhancement Under Section 667.5, Subdivision (b)

       The People argue that if this court strikes one of the enhancements under section

667, subdivision (a), the trial court could properly impose a one-year enhancement under

section 667.5, subdivision (b), which provides: “[W]here the new offense is any felony

for which a prison sentence . . . is imposed or is not suspended, in addition and

consecutive to any other sentence therefor, the court shall impose a one-year term for

each prior separate prison term . . . provided that no additional term shall be imposed

under this subdivision for any prison term . . . prior to a period of five years in which the

defendant remained free of both the commission of an offense which results in a felony

conviction, and prison custody . . . or any felony sentence that is not suspended.”

       Defendant was released from prison on June 27, 2005, and was discharged from

parole on June 27, 2008. He committed the current offenses on July 2, 2012. He

contends that the prior offenses have “washed out” under the five-year period set forth in

the last phrase of section 667.5, subdivision (b), set forth, ante. Under the “‘washout

rule,’” the one-year enhancement does not apply if a defendant remains free of prison

custody and does not commit a new felony for any five-year period following discharge

from custody or release on parole. (People v. Fielder (2004) 114 Cal.App.4th 1221,

1229.) “[F]or the prosecution to prevent application of the ‘washout’ rule, it must show a

defendant either served time in prison or committed a crime leading to a felony

conviction within the pertinent five-year period.” (Ibid.)


                                              8
       The People apparently interpret the requirement of remaining free from prison

custody as extending it until defendant was discharged from parole, which took place less

than five years from the current crimes. However, the statute provides that the five-year

period begins to run from the time a defendant is released on parole, not from the time he

is discharged from parole: “For the purposes of this section, the defendant shall be

deemed to remain in prison custody for an offense until the official discharge from

custody, including any period of mandatory supervision, or until release on parole or

postrelease community supervision, whichever first occurs, including any time during

which the defendant remains subject to reimprisonment . . . or is reimprisoned on

revocation of parole or postrelease community supervision.” (§ 667.5, subd. (d).) For

example, in People v. Nobleton (1995) 38 Cal.App.4th 76, the court held that when the

defendant had been paroled on July 10, 1988, and had committed a new crime on

March 15, 1994, a period of more than five years had run, precluding an enhancement

under section 667.5, subdivision (b), even though he was not discharged from parole until

July 11, 1991. (Id. at pp. 84-85.) Here, likewise, a period of more than five years had

run between defendant’s release on parole and his commission of the current offenses.

       We therefore reject the People’s argument that on remand the trial court should

consider whether to impose a one-year enhancement under section 667.5, subdivision (b).




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                                      DISPOSITION

       Defendant’s sentence is vacated. Two of the three true findings as to the

allegations that defendant suffered three prior convictions (§ 667, subd. (a)) brought and

tried separately in case No. CR142830 are reversed. The matter is remanded for a retrial

as to those allegations and for further proceedings consistent with this opinion. In all

other respects, the judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                McKINSTER
                                                                                             J.
We concur:



RAMIREZ
                        P. J.



CODRINGTON
                           J.




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