Wagner

Penal Code section 667 (hereafter, section 667) states in part 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.” In the published portion of this opinion we revisit the issue of how the phrase “on charges brought and tried separately” in section 667 applies to plea adjudications encompassing multiple offenses, an issue we examined in People v. Deay (1987) 194 Cal.App.3d 280 [ 239 Cal.Rptr. 406 ]. Since Deay was-decided we have witnessed the appearance of one California Supreme Court decision—In re Harris (1989) 49 Cal.3d 131 [ 260 Cal.Rptr. 288 , 775 P.2d 1057 ]—and several Court of Appeal decisions from other districts. In light of these decisions, we conclude that the “temporal separateness” principle noted in Deay is simply a factor to consider in determining whether prior offenses were adjudicated in proceedings that were “formally distinct” as required by In re Harris.

In the unpublished portion of this opinion, we conclude…

I dissent.

I disagree with the majority’s conclusion that defendant was properly convicted of two prior serious felonies on the theory that they were “separately charged” and “separately tried” by virtue of the singular fact that the cases were “formally” treated as two cases notwithstanding that the pleas to both offenses were jointly taken and defendant was sentenced in single proceedings. The majority have thereby transmuted the two required elements of the enhancement into one.

I

Defendant was separately charged with two burglaries which occurred three weeks apart. The pleas to both offenses were taken, both singly and jointly, in a single proceeding pursuant to a single plea bargain. The plea bargain provides: “Mr. Wagner [defendant] is prepared to enter pleas of guilty to both Complaints with the understanding that he would be promised no more than the midterm of four years as to one complaint, and one-third of the middle term as to the second complaint, so his maximum exposure would be five years and four months.” Additionally, it was made a condition of the bargain that “any time he receives on the violation of probation would run *739 concurrent with this sentence;…

[Opinion certified for partial publication. [1] ]

OPINION

DAVIS, J.

Penal Code section 667 (hereafter, section 667) states in part 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." In the published portion of this opinion we revisit the issue of how the phrase "on charges brought and tried separately" in section 667 applies to plea adjudications encompassing multiple offenses, an issue we examined in People v. Deay (1987) 194 Cal. App.3d 280 [ 239 Cal. Rptr. 406 ]. Since Deay was decided we have witnessed the appearance of one California Supreme Court decision — In re Harris (1989) 49 Cal.3d 131 [ 260 Cal. Rptr. 288 , 775 P.2d 1057 ] — and several Court of Appeal decisions from other districts. In light of these decisions, we conclude that the "temporal separateness" principle noted in Deay is simply a factor to consider in determining whether prior offenses were adjudicated in proceedings that were "formally distinct" as required by In…