Error and/or relief
We vacate one of the three prior serious felony conviction enhancements, because it was not brought and tried separately from one of the others.
Holding:
Section 667 (a)(1) provides in relevant part that a 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 that 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 phrase “brought and tried separately” means that the underlying charges were formally distinct, from filing to adjudication of guilt. Because the evidence presented does not show that the two prior convictions that took place on the same day in 1990 in the same county were brought and tried separately, we vacate the prior serious felony enhancements based on the second conviction that the defendant admitted suffering.
Authority:
PEN 667(a)
People v. Wiley (1995) 9 Cal.4th 580, 593-595
In re Harris (1989) 49 Cal.3d 131, 136