Superior Court of Fresno County, No. 372447-3, Dwayne Keyes, Judge.
Opinion by Stone (w. A.), Acting P. J., with Baxter and Dibiaso, JJ., concurring.
A jury convicted defendant of multiple violations of the Penal Code:*fn1 count one, sections 459 and 460 (residential burglary); count three, sections 664 and 187 (attempted second degree murder); and count four, section 245, subdivision (a)(2) (assault with a firearm). With each count the jury
found defendant personally used a firearm during the commission of that offense within the meaning of section 12022.5. The jury also found defendant suffered two prior serious felony convictions within the meaning of sections 667, subdivision (a) and 1192.7, subdivision (c)(19).
The court sentenced defendant to a total prison term of twenty-two years and four months, consisting of (1) the upper term of nine years for attempted second degree murder, (2) two years for use of a firearm in the attempted murder, (3) a consecutive midterm sentence of four years for burglary, with two-thirds of the term stayed, and (4) two consecutive five-year terms for the prior felony convictions. In addition, the court imposed a concurrent midterm sentence of one year for the armed assault and stayed two-year enhancements for firearm use in counts one and four. The facts surrounding the crimes for which defendant was convicted are not germane to the published issues on appeal. Where facts are necessary to those issues, they will be included with our analysis.
Two Separate Prior Convictions
Defendant argues he suffered only one prior serious felony conviction within the meaning of section 667, subdivision (a), not two. His sentence should therefore have been enhanced by five years rather than ten. We attempt to set forth the relevant portions of the confusing history of defendant's two cases which led to these prior serious felony convictions.*fn2 We designate superior court case No. 249818-6 as "Case No. 1" and superior court case No. 250330-8 as "Case No. 2."
On November 5, 1979, a preliminary hearing was held in Case No. 1, following which the People filed an information alleging seven counts of robbery with a different victim named in each count and one count of assault with a deadly weapon. The robbery victim in count eight was Thomas Fowler.
In Case No. 2, defendant obtained a continuance for the preliminary hearing to a date beyond the deadline for filing the information in Case No. 1 in the superior court. The information in Case No. 2, eventually filed
December 10, 1979, alleged two counts of robbery, each with a victim different than those named in the counts of the information in Case No. 1. On December 11, the court denied the People's motion to consolidate the two cases for trial. Defendant objected to consolidation.
In Case No. 1, by verdict rendered January 22, 1980, a jury convicted defendant of two counts of robbery, four counts of the lesser included offense of grand theft person and one count of assault with a deadly weapon. In all of the robbery and grand theft convictions it was also found defendant used a firearm. In the assault conviction it was found he used a deadly weapon other than a firearm. The jury was unable to reach a verdict on count eight, in which Fowler was the alleged victim, and a mistrial was declared on that count.
On January 23, the People moved to consolidate count eight of Case No. 1 for trial with Case No. 2. The People argued consolidation was proper because the crimes were similar, time for trial would be shortened, and all counts in both cases would have been consolidated for trial but for defendant obtaining a continuance of the preliminary hearing in Case No. 2, as discussed previously. Defendant objected to consolidating count eight with Case No. 2. On January 25, the court granted the People's motion to consolidate, and this court affirmed that ruling in an unpublished opinion, People v. Bizieff, 5 Crim. No. 4916.
On February 14, 1980, the trial court in Case No. 2 suggested, rather than consolidation, the People dismiss the Fowler count in Case No. 1 and file an amended information in Case No. 2 and allege the Fowler count in the amended information. All parties were in agreement to this suggestion. However, we find no formal dismissal order in the record.
On February 19, 1980, the court sentenced defendant in Case No. 1.
On February 22, 1980, the People filed an amended information in Case No. 2 which charged three counts, the original counts of Case No. 2 and the "Fowler" count of Case No. 1.
On March 14, 1980, a jury found defendant guilty of the three robbery counts in Case No. 2, and the court sentenced defendant on those three counts on April 11.
The verdicts in the present action read identically except for the designation of "first" and "second" prior conviction and the case numbers. One referred to case No. 249818-6, and the ...