Shamburger

This petition, brought by a defendant being tried for only one murder, challenges the trial court’s failure to dismiss the special circumstance allegation that the defendant “has in this proceeding been convicted of more than one offense of murder in the first or second degree.” (Pen. Code, § 190.2, subd. (a)(3).) The present incongruity arose because petitioner successfully moved to sever two murder charges against him. We conclude that the trial court erred in failing to dismiss the allegation under Penal Code section 190.2, subdivision (a)(3). We also explain that the severance automatically conferred on the prosecutor the right to amend the information to charge the special circumstance that the defendant “was previously convicted of murder in the first degree or second degree.” (Pen. Code, § 190.2, subd. (a)(2).) Both results are dictated by the Supreme Court’s decision in Williams v. Superior Court (1984) 36 Cal.3d 441 [ 204 Cal.Rptr. 700 , 683 P.2d 699 ].

The felony complaint charged petitioner with the murders of Jerome Nance and William Fisher and alleged the special circumstance of conviction of more than one murder “in this proceeding.” (Pen. Code, § 190.2,…