Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCR200854
GEMELLO, J.
Defendant Corey Elder appeals from the sentence imposed following his conviction by a jury of various offenses. Defendant contends that the trial court erred in imposing two five-year sentence enhancements for two prior convictions because there was insufficient evidence that the charges were brought separately. He also contends that the trial court erred in imposing four one-year sentence enhancements pursuant to Penal Code section 667.5, subdivision (b). We conclude that both contentions have merit and remand for resentencing or, at the prosecution’s election, redetermination of whether the two Solano County prior convictions arose from charges brought separately. In all other respects, the judgment is affirmed.
All further statutory references are to the Penal Code unless otherwise indicated.
Procedural Background
On April 4, 2003, an information was filed in the Solano County Superior Court charging defendant with assault on a police officer (§ 245, subd. (c); count one); leaving the scene of an accident (Veh. Code, § 20001, subd. (a); count two); driving the wrong way on a divided highway causing injury (Veh. Code, § 21651, subd. (b); count three); and evading a police officer causing injury (Veh. Code, § 2800.3; count four). The information alleged that defendant personally inflicted great bodily injury in conjunction with counts three and four (§ 12022.7, subd. (a)) and that he suffered prior serious felony convictions (§§ 1170.12 & 667).
A jury found defendant guilty of simple assault (§ 240), a lesser included offense to count one; guilty of hit and run without injury (Veh. Code, § 20002, subd. (a)), a lesser included offense to count two; and guilty as charged in counts three and four. The trial court sentenced defendant to a total prison term of 46 years to life.
Factual Background
The facts of the case are not relevant to the sentencing issues on appeal, so we include only a brief summary.
On June 20, 2002, defendant was detained by Fairfield Police Officer David Fullen on Interstate 80 eastbound for speeding and tailgating. Defendant was on parole and did not have a driver’s license. Officer Fullen called for backup. After the officer informed defendant that they were going to have to wait for about ten minutes, defendant put his car in reverse and slammed into the police car. Defendant then made a U-turn and traveled the wrong way on a freeway offramp and then drove on the shoulder of the freeway headed in the opposite direction of traffic. Defendant collided with a car traveling on the freeway, causing serious injury to the driver of the other car.
Discussion
I. The Section 667, Subdivision (a)(1) Enhancements
Section 667, subdivision (a)(1) provides that, “[A]ny 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. The terms of the present offense and each enhancement shall run consecutively.” The trial court imposed consecutive five-year terms under section 667 for three prior convictions: (1) a Solano County conviction for assault with a firearm (§ 245, subd. (a)(2)) in case number C32429; (2) a Solano County conviction for assault with a firearm (§ 245, subd. (a)(2)) in case number C32430; and (3) an Alameda County conviction for robbery (§ 211). Defendant contends that the trial court erred in imposing five-year sentence enhancements for both Solano County priors because there was insufficient evidence that the charges were brought separately.
The California Supreme Court interpreted section 667 in In re Harris (1989) 49 Cal.3d 131. There, the defendant had two prior robbery convictions; the robberies were originally included in a single complaint but were later charged in two separate informations. (Id. at pp. 133-134.) The court construed the phrase “brought and tried separately” in section 667 to mean that “the underlying proceedings must have been formally distinct, from filing to adjudication of guilt.” (Id. at p. 136.) The robbery priors were not formally distinct because both charges were brought in the same complaint; accordingly, only one section 667 enhancement could be imposed. (Id. at pp. 136-137.)
In People v. Wiley (1995) 9 Cal.4th 580, 592, the Supreme Court considered whether the evidence was sufficient to prove that prior charges were brought separately where the charges were prosecuted under separate informations but there was no direct evidence concerning whether both charges were included in a single complaint. The court noted that it is not always necessary to produce the complaints in order to prove that charges were brought separately because other circumstances can support a reasonable inference that the charges were brought in separate complaints. (Id. at p. 593.) The relevant circumstance in Wiley was that the two informations at issue bore significantly different case numbers, 135 numbers apart. (Ibid.) The court concluded that “[t]he 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).” (Ibid.)
In the matter before us, the evidence before the trial court was not sufficient to support a finding that the Solano County charges were brought separately. The evidence below did not include the original complaint or complaints. The prosecution simply introduced into evidence an abstract of judgment showing sentencing in two Solano County cases on September 29, 1992. Critically, the two informations involved in that sentencing were consecutively numbered, C32429 and C32430. Accordingly, the trial court could not reasonably infer from the numbering that the charges were brought in separate complaints. The People do not point to any other evidence before the trial court which could support the finding that the charges were brought separately. Because there was no evidence that defendant’s Solano County prior convictions involved charges that were brought separately, imposition of two five-year enhancements for those priors was improper.
The trial judge’s passing comment that he was the judge in the earlier cases is not evidence that the charges were brought in two separate complaints.
On March 1, 2007, the People filed a motion requesting that we take judicial notice of court records relating to the prior convictions, which show that there were two complaints, one relating to acts occurring on January 20, 1992 (C32430) and the other relating to acts occurring on February 27, 1992 (C32429). However, in determining the sufficiency of the evidence, we are limited to the evidence before the trial court at the time of its ruling. (People v. Welch (1999) 20 Cal.4th 701, 739; People v. Jenkins (2000) 22 Cal.4th 900, 952-953; People v. Jackson (1992) 7 Cal.App.4th 1367, 1372-1373.) Jackson is directly on point. In that case, there was insufficient evidence before the trial court that a prior burglary conviction was a serious felony within the meaning of section 667, subdivision (a). (Jackson, at pp. 1371-1372.) On appeal, the People asked the court to take judicial notice of court records showing that the burglary was of an inhabited dwelling. (Id. at p. 1372 & fn. 5.) The court concluded that for it to make the requested finding based on documents not presented below “would do ‘violence to the elementary principle that the function of an appellate court, in reviewing a trial court judgment on direct appeal, is limited to matters contained in the record of the trial proceedings.’ ” (Id. at p. 1373.)
At the time People v. Jackson was decided, there were no subparts to section 667, subdivision (a). In 1994, the Legislature redesignated section 667, subdivision (a) to be section 667, subdivision (a)(1). (Stats. 1994, ch. 12, § 1.)
People v. Wiley, supra, 9 Cal.4th 580, does not support the People’s request for judicial notice. As discussed previously, the court concluded that the fact that the informations bore significantly different case numbers was sufficient to support the trial court’s section 667 finding. The court then stated that because “this is a matter that can be revisited on habeas corpus,” it was “appropriate to obtain portions of the municipal court records pertaining to the alleged prior convictions.” (Id. at p. 594.) Those records showed that the prior charges were brought in separate complaints, thus precluding a habeas petition on the issue. (Ibid.; see also id. at pp. 603-605 (dis. opn. of Werdegar, J.) In the present case, the evidence before the trial court did not permit an inference that the charges were brought separately and we must reverse the trial court ruling on direct appeal. Hence, there is no possibility that the matter will be revisited on habeas corpus. We deny the People’s request for judicial notice. (See People v. Jenkins, supra, 22 Cal.4th at p. 953 [noting that a grant of judicial notice may be appropriate in connection with a habeas petition but not on appeal].)
Because there was insufficient evidence to support the trial court finding that the two Solano County priors arose from charges brought separately, the court erred in imposing five-year enhancements under section 667, subdivision (a)(1) for both prior convictions. Retrial of the second enhancement is permissible in these circumstances (People v. Barragan (2004) 32 Cal.4th 236), and we remand for resentencing or retrial.
II. The Section 667.5, Subdivision (b) Enhancements
Defendant contends that the trial court erroneously imposed (and stayed) four one-year sentence enhancements pursuant to section 667.5, subdivision (b). The People agree. On remand, the trial court should modify the abstract of judgment to eliminate those enhancements.
Disposition
The trial court judgment is reversed to the extent it imposes two five-year sentence enhancements under section 667, subdivision (a)(1) for the two Solano County prior convictions and to the extent it imposes four one-year sentence enhancements pursuant to section 667.5, subdivision (b). In all other respects, the judgment is affirmed. The cause is remanded to the trial court for resentencing or, at the prosecution’s election, redetermination of whether the two Solano County priors arose from charges brought separately.
We concur.
JONES, P.J., SIMONS, J.