Rojas

May a sentencing court impose a five-year enhancement, pursuant to Penal Code section 667, subdivision (a), for a prior conviction occurring after commission of the crime for which the defendant is presently being sentenced? We hold it may not.

Jose Antonio Rojas and a codefendant were charged in a one-count information with committing a residential burglary July 23, 1986. (Pen. Code, § 459.) In addition, appellant was arrested for a rape committed July 21, 1986, and went to trial on that charge while proceedings were pending on the burglary. Appellant was convicted of rape April 2, 1987. The People amended the information in the burglary case to add allegations that, at the time defendant committed the burglary, Rojas was released from custody on his own recognizance for a felony offense within the meaning of Penal Code section 12022.1, and that appellant was convicted of a serious felony on April 2, 1987, rape (§ 261), within the meaning of section 667, subdivision (a).

April 7, 1987, a jury found defendant guilty of burglary in the first degree. He admitted the section 12022.1 allegation and further admitted that he had been convicted of rape April 2, 1987, but…