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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
1 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.
2 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
3 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
4 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.
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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.
1 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.
2 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
3 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
4 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
5 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,
6 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).
9 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.