1

Filed 5/21/15

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Shasta)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

JEREMIAH ALLEN JONES,

Defendant and Appellant.

C075250

(Super. Ct. No. 13F1507)

APPEAL from a judgment of the Superior Court of Shasta County, Stephen H. 

Baker, Judge. Affirmed as modified.

Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney 

General, Daniel B. Bernstein, Peter H. Smith, Deputy Attorney General, for Plaintiff and 

Respondent.

 

*

 Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified 

for publication with the exception of parts I, II, and III of the discussion.
2

A jury found defendant Jeremiah Allen Jones guilty of three counts of making 

criminal threats, obstructing an officer, first degree burglary, and two counts of 

misdemeanor child endangerment. (Pen. Code, §§ 69, 273a, subd. (b), 422, 459.)1 

Defendant admitted two strikes, which were also alleged as two prior serious felonies, 

and admitted serving three prior prison terms. (§§ 667, subds. (a) & (b)-(i), 667.5, subd. 

(b), 1170.12.) The trial court sentenced defendant to prison for 25 years to life plus eight 

years, and defendant timely filed this appeal.

On appeal, defendant contends the trial court erred by: (1) having him shackled 

during trial; (2) admitting evidence of his gang membership; (3) failing to advise him of 

his rights before accepting his admission to prior convictions; and (4) failing to strike an 

enhancement allegation and instead staying it (§ 654).

The parties agree defendant’s two serious felony convictions were not “brought 

and tried separately” as required by section 667, subdivision (a)(1), but disagree as to 

whether a trial court may impose and then stay sentence for one of those enhancements. 

As we explain post in the published portion of our decision, Part IV of the Discussion, the 

answer is no. We shall vacate the enhancement, modify the sentence, and affirm the 

judgment as modified. 

FACTS

M.H. lived in a motel with her daughters, aged nine and five. On March 5, 2013, 

defendant kicked in the door, took her mobile phone out of her hand, and took her wallet, 

keys, and a knife. M.H. called the police but did not cooperate and did not want to file a 

report. A maintenance man had seen defendant several times, apparently stalking M.H., 

and trying to enter her room. 

 

1

 Further undesignated statutory references are to the Penal Code.
3

On March 8, 2013, defendant--armed with the knife he had taken--told M.H. he 

loved her when she returned to the motel. She told one of her daughters to ask her sister 

to call 911. Defendant threatened to “beat [her] ass” or “smash” her sister. When the 

sister left the room, defendant pulled the knife on M.H., pushed M.H. onto the bed, and 

shoved her older daughter against a wall. M.H. grabbed a baseball bat and began beating 

defendant, while her sister called 911. Defendant grabbed the bat from M.H., threw it 

away, and then threatened to “beat her ass” and to kill her. 

When peace officers arrived, defendant was uncooperative. Officer Steven 

Morehouse arrived as defendant was being handcuffed, and recognized him due to a 2012 

arrest based on a warrant from Southern California. He had learned then that defendant 

was a Crips gang member, both because of defendant’s arm tattoo and his admission. 

During that prior arrest defendant became extremely violent and threatened that when his 

handcuffs were removed “he was going to knock somebody out, he was going to take 

somebody out” and it had taken five deputies to control him due to his violence.

On this occasion, Officer Morehouse took defendant to jail. When he tried to talk 

with defendant, defendant screamed, smashed his head against the patrol car’s window, 

and kicked at the car door. As they left the motel, defendant screamed towards M.H.: 

“I’ll be out tonight bitch. I’ll be out tonight.” He then shifted his remarks toward 

Morehouse, stating: “You’re on, cuz. I’ll be out tonight. I’ll be back at you tonight, 

Morehouse.” Defendant continued to scream, and asked what shifts Morehouse worked, 

and when Morehouse asked why he wanted that information, defendant said: “You’ll 

find out. You can take that as a threat.” He continued to swear and make threats, stating 

he was the “real deal” and would “bring this town to its knees.” Morehouse audiorecorded some of defendant’s comments, including, “You think I’m just sittin’ over here 

just talking. I promise you, cuz, I’ll get you knocked out as soon as you walk out this 

door.” 
4

Because of defendant’s demeanor, his direct and articulate threats, and his 

membership in the Crips gang, Morehouse took the threat seriously. It was one of only a 

few threats he had received in his 23-year career as a peace officer that he took seriously, 

and he remained afraid defendant would attempt to implement his threats even as of the 

time of trial. Morehouse was a gang expert, and testified the Crips were a highly 

organized and extremely violent gang that committed crimes including assaulting and 

murdering peace officers. He feared defendant could retaliate, or arrange for a fellow 

gang member to retaliate, against Morehouse.

DISCUSSION

I

Restraints

Defendant contends the trial court mishandled the issue of his restraints during 

trial. We disagree, and in any event find no prejudice.

A. Background

Before trial began, the trial court conducted a hearing regarding defendant’s 

restraints. Defendant was handcuffed, with his hands beneath the table. Defense counsel 

stated he had discussed restraints with defendant, and defendant agreed to “nonvisible 

restraints, which would be the Bandit or a leg brace. He is opposed to being shackled . . . 

such as he is right now.” Defendant advised the court that he had been in a Bandit (an 

under-the-clothing electronic leg restraint) before, and had no objection to wearing it at 

trial. 

Deputy Marshal Gary Cropley testified that based on defendant’s jail conduct and 

criminal record he should wear belly chains and leg restraints for the trial. He related 

defendant’s conduct toward the officers on March 8. He testified that when defendant 

had been in local custody in September 2012, he made numerous threats towards 

correctional staff and tried to start fights during intake. Defendant had added that he 

would rather “catch a fresh assault” in Shasta County than be returned to Riverside 
5

County. While being taken to court on March 12, 2013, defendant made multiple threats 

to officers, and ultimately had to be removed from court. He made other threats or 

defiant comments to officers on other dates and had participated in a race-based jail fight. 

Defendant’s criminal record included a 1997 robbery conviction, a 1998 conviction for 

obstructing a peace officer, and a 2011 conviction for inflicting corporal injury on a 

cohabitant, after which he was housed at Pelican Bay State Prison. The marshal was 

concerned about the Bandit’s effectiveness, but testified that leg chains could be used 

without also using visible handcuffs.

Based on this information, the trial court found there was a manifest need for some 

kind of restraints, but thought leg chains, not visible to the jury, would be sufficient, to 

allow defendant to use his hands “so he can more freely participate in his defense.” 

Defense counsel objected that the leg chains were visible, and rattled when defendant 

moved in what counsel characterized as a very small courtroom. The marshal added that 

if defendant’s hands were to be free, it would be better to use the Bandit than leg chains. 

That was the trial court’s order.2 

The next day, before the prospective jurors were brought in for voir dire,

defendant elected to appear in jail clothes. The trial court went on record to note this 

fact, and to confirm defendant’s wishes, whereupon defendant said: “Why sit up here 

and lie? I’m already being cheated. Fuck all that. I’m cool, cuz. I just told you 

already.” Defense counsel added that defendant was also in visible restraints, at 

defendant’s request. Defense counsel opposed this circumstance, but believed the law 

did not permit him to overrule his client’s wishes.

 

2

In the middle of the marshal’s testimony, defendant interjected that he did not care 

about restraints since he was going to be convicted anyway. He repeated his view after 

the trial court made the restraint ruling, stating, “just get it over with so I can get back to 

prison and get cracking.”
6

When the prospective jurors were seated, the trial court admonished them as 

follows: “The fact that physical restraints have been placed upon Mr. Jones in this case is 

not evidence, nor is the fact that he’s in custody or wearing jail clothing. You’re not to 

speculate about the reason why this is the case. You must completely disregard these 

circumstances in deciding the issues in this case. Do not consider these factors for any 

purpose whatsoever, nor discuss them during your deliberations.” 

The next day, defendant appeared in civilian clothing, but still with visible 

restraints, and defense counsel objected to the restraints. The trial court ruled that 

defendant had made his choice the day before, and “the cat’s out of the bag.” Although 

defendant was free to wear different clothing, the trial court told him it was not going to 

order different restraints day to day based on defendant’s whim. The trial court recited 

the history of the issue, and in particular noted visible chains were “the most preferable 

form or restraint for the Court and for my security staff, but on the first day of trial . . . we 

were able to make a decision to use this Bandit instead and your client consented to that 

clearly and unequivocally. [¶] But, then he changed his mind and we went to the chains

yesterday.” After defense counsel stated the trial court needed to make a determination 

justifying the increased level of restraint, the trial court stated “there have been some 

changes in circumstances” and described that defendant may have threatened defense 

counsel at a prior in camera Marsden hearing (People v. Marsden (1970) 2 Cal.3d 118), 

about which the trial court was reluctant to disclose too much. Also, defendant seemed 

agitated, but the trial court later stated, “[I]f there were even a need for changed 

circumstances to justify the use of chain restraints, you would certainly have those 

changed circumstances, but I really don’t think that I need to make that finding in order 

to justify the use of chains now.”3

 

3 Appellate counsel notes the Marsden hearing transcript is confidential, but because 

appellate counsel also attacks the adequacy of the trial court’s findings, we must quote a 
7

At the end of the trial, the trial court again admonished the jurors to disregard 

restraints and not speculate about why they were employed. 

Defendant now contends the trial court misapplied the rules regarding restraints.

B. The Law

“No person charged with a public offense may be subjected, before conviction, to 

any more restraint than is necessary for his detention to answer the charge.” (§ 688.) 

Based on “possible prejudice in the minds of the jurors, the affront to human dignity, the 

disrespect for the entire judicial system which is incident to unjustifiable use of physical 

restraints, as well as the effect such restraints have upon a defendant's decision to take the 

stand,” our Supreme Court has reaffirmed the rule “that a defendant cannot be subjected 

to physical restraints of any kind in the courtroom while in the jury's presence, unless 

there is a showing of a manifest need for such restraints.” (People v. Duran (1976) 16 

Cal.3d 282, 290-291.) Restraints “should be as unobtrusive as possible, although as 

effective as necessary.” (Id. at p. 291.) A trial court has broad discretion to determine 

the need for and necessary level of restraints. (See People v. Cunningham (2001) 25 

Cal.4th 926, 987.)

 

portion of the confidential transcript to address the claims. At the referenced Marsden

hearing that occurred the previous day, the trial court assured defendant he could have as 

much time as needed to dress in civilian clothing, and confirmed defendant wanted to be 

shackled. After the trial court stated, “I don’t think that’s necessarily in your best 

interests either,” defendant replied: “Why lie?” Earlier during that same hearing, 

defendant had said, “Right now I’m being cool about the situation, but in a second I’m 

not gonna be cool. . . . [¶] I’m trying to be cordial as possible so that I don’t get 

restrained, beat up, choked out while I’m handcuffed like this, and I don’t want to take a 

Tase. So . . . the reason why I allowed myself to be in mechanical restraints [was] to 

protect myself from doing anything that would cause me to ruin myself.” When defense 

counsel began to argue that if defendant was physically threatening him, that might 

provide grounds for new counsel, defendant said he was not threatening anybody. Later, 

the trial court said defendant was agitated, and defendant said he was “[b]eyond agitated. 

I’m getting played.”
8

C. Analysis

Although defendant voluntarily appeared in visible shackles one day after the trial 

court ordered non-visible restraints, we agree with appellate counsel that that act alone 

did not forfeit defendant’s right to return to the less restrictive device, and the trial court 

should have made findings about changed circumstances justifying greater restraints. 

However, as we read the record, the trial court did find changed circumstances, namely, 

defendant’s threats at the Marsden hearing the prior day, as well as his demeanor, which 

even defendant described as “[b]eyond agitated.” 

It is true the trial court suggested it did not need to find changed circumstances to 

elevate the level of restraints. Appellate counsel contends the trial court’s statements 

about the threats were only an afterthought to the trial court’s view that defendant had let 

the cat out of the bag. But after trial counsel objected to an increase in restraints absent 

new findings, the trial court first found the threats and defendant’s agitation reflected 

changed circumstances, and then made the comment that it did not believe such 

additional findings were necessary. Read in context, the trial court’s later comment was 

an aside that did not cancel out the changed circumstances finding the trial court had 

already made in response to defense counsel’s objection. 

Defendant concedes a threat of courtroom violence can show manifest need for 

restraints (see, e.g., People v. Stankewitz (1990) 51 Cal.3d 72, 95-97), but suggests his 

threat did not qualify as a changed circumstance justifying a higher level of restraints. 

We defer to the trial court’s view that defendant’s words at the Marsden hearing were a 

threat and that threat and defendant’s high level of agitation during the Marsden hearing 

(see fn. 3, ante) qualified as sufficient changed circumstances to justify leaving him in the 

chains that he had elected to wear in front of the jury the day before.

Even assuming error of federal constitutional dimension, we would hold any error 

harmless beyond a reasonable doubt. (See Deck v. Missouri (2005) 544 U.S. 622, 635 

[161 L.Ed.2d 953, 966].) This court has described the test as follows: “To find the error 
9

harmless we must find beyond a reasonable doubt that it did not contribute to the verdict, 

that it was unimportant in relation to everything else the jury considered on the issue in 

question.” (People v. Song (2004) 124 Cal.App.4th 973, 984; see Yates v. Evatt (1991) 

500 U.S. 391, 403-404 [114 L.Ed.2d 432, 448-449].) 

The prospective jurors saw defendant in jail clothing and shackles, at defendant’s 

choice, not because of any ruling by the trial court or action by the jail authorities. We 

have pointed out in a prior case involving shackling of witnesses, that any prejudice 

arises in the minds of the jurors “as soon as they learn the witness is an inmate; the 

presence of shackles is superfluous to that concern.” (People v. Valenzuela (1984) 151 

Cal.App.3d 180, 194; see People v. Ceniceros (1994) 26 Cal.App.4th 266, 281.) The jury 

learned defendant was in custody due to his own choice; therefore, that amount of 

prejudice is attributable to him. Trial counsel himself pointed out what defendant had 

done “sheds the cloak of innocence, so to speak.” Thus, even assuming error, it only 

incrementally increased the possible prejudice to defendant.

Defendant emphasizes authority holding that “while a brief glimpse of defendant 

in shackles would not constitute prejudicial error [citations], the use of physical restraints 

in the courtroom without a prior showing of the manifest need for such restraints violates 

Duran [citation.] When such restraints are visible to the jury for a substantial length of 

time without meeting the Duran requirements, this trial court error may deprive 

defendant of his due process right to a fair and impartial jury, and may affect the 

presumption of innocence.” (People v. Jackson (1993) 14 Cal.App.4th 1818, 1830.) 

However, again assuming error occurred, we do not believe defendant was 

deprived of due process in this case.

First, defendant chose not to testify, so the jury was not subjected to the spectacle 

of a shackled defendant testifying. Second, the crimes themselves were violent, so the 

jury would naturally assume some security measures were required. (See People v. 

Jackson, supra, 14 Cal.App.4th at p. 1831 [“defendants did not testify in chains,” and 
10

“since the bulk of the violent crimes charged consisted of shots fired at police officers, it 

would be reasonable for the jury to expect some security precautions”].) Third, the jury 

was properly admonished to disregard defendant’s custody and restraint status. (See 

People v. Duran, supra, 16 Cal.3d at pp. 291-292 [“In those instances when visible 

restraints must be imposed the court shall instruct the jury sua sponte that such restraints 

should have no bearing on the determination of the defendant’s guilt”].) We presume the 

jury heeded the admonition. (See People v. McDaniel (2008) 159 Cal.App.4th 736, 746-

747 [“reasonable to presume that jurors can follow an admonition to disregard shackles 

that is given at the beginning of trial”].) Fourth, the jury acquitted defendant of robbery, 

burglary, and theft charges related to the March 5, 2013, incident. This shows that it was 

not so inflamed by seeing him in chains that it abandoned its duty to fairly assess the 

evidence and hold the People to their high burden of proof. Fifth, as to the counts of 

which defendant stands convicted, the evidence was quite strong. 

Appellate counsel asserts that M.H. “was discredited as a liar” based on disputed 

evidence about whether she and defendant had had a romantic relationship and based on 

the opinion of her child’s father’s parole officer that she made up reasons to have the 

parolee picked up. Further, counsel notes that other evidence was vulnerable (e.g., the 

maintenance man was a convicted child molester, the sister had been a drug user and 

thought defendant was on drugs, and defendant did not “smash” her as he threatened 

although he had the chance). But there were multiple witnesses to the motel incidents 

who gave interlocking testimony, and partial audio recordings to corroborate Officer 

Morehouse’s testimony about defendant’s threats to him. There was no developed 

defense of intoxication, as appellate counsel muses. Accordingly, we reject defendant’s 

claim of prejudicial error regarding restraints.
11

II

Admission of Gang Evidence

Defendant contends the trial court improperly permitted the People to introduce 

evidence of his membership in a street gang, in a case where no gang charges were at 

issue. We find no error. 

To prove the section 422 charges, the People had to prove that the threat caused 

the victim “reasonably to be in sustained fear for his or her own safety or for his or her 

immediate family’s safety.” (§ 422; see People v. Melhado (1998) 60 Cal.App.4th 1529, 

1536; CALCRIM No. 1300.) At an in limine hearing to address the evidence proffered 

by the People to show Morehouse’s reasonable and sustained fear, he testified that 

defendant’s charged threats to him caused actual fear because of: (1) defendant’s violent 

criminal background then known by Morehouse, including both convictions and arrests, 

including two arrests for attempted murder, one of which was for attempted murder of a 

peace officer; (2) Morehouse’s knowledge of defendant’s gang affiliation, specifically, 

Logan Heights Crips in San Diego, and the fact defendant openly sported a Crips tattoo 

on his arm; (3) Morehouse’s experience as a gang expert, which taught him that the 

“Crips are a very violent and organized gang” that commits many felonies; and (4) 

defendant’s hostile demeanor and threats against peace officers and jail staff when 

Morehouse previously arrested defendant on a warrant in 2012. Thus, Morehouse’s 

actual knowledge of defendant’s actions and affiliations made what might have been 

taken as the otherwise powerless threats of an arrestee much more serious, in 

Morehouse’s mind.

The trial court initially excluded the gang evidence, as cumulative of other 

evidence known to Morehouse sufficient to place him in sustained fear, and out of a 

concern that the jury might also consider that evidence in determining whether the named 

victims in two other section 422 counts were placed in sustained fear on the same day. 

Similarly, the trial court excluded references to prior crimes; however, the trial court 
12

ruled that Morehouse’s personal interactions with defendant on the occasion of the 2012 

arrest would be admissible. 

Later, considering a subsequent motion, the trial court revisited the issue. Noting 

that the previous day the jury had seen defendant in jail clothing, displaying his tattoos 

including a gang tattoo, the court allowed testimony about Morehouse’s knowledge of 

defendant’s gang membership (but not his prior criminal record) to show his fear of 

defendant. 

The trial court then instructed the jury, modified as proposed by defense counsel 

over objection, as follows: “The evidence of defendant’s gang membership can only be 

considered for the limited purpose of the effect such evidence had on Officer Steven 

Morehouse’s state of mind as it relates to the criminal threat charge in Count 5. Do not 

consider this evidence for any other purpose or for any other charged crime. There’s no 

evidence that Mr. Jones is a gang member. The People are not contending that fact. You 

may not assume or conclude that the defendant is, in fact, a gang member. There’s no 

evidence to that effect. Do not conclude from this evidence that the defendant is a person 

of bad character or has a disposition to commit crime.” (Italics added.)

The trial court gave a similar instruction at the end of the trial.4 During opening 

and closing arguments, the prosecutor properly referenced the gang testimony only as it 

related to the criminal threats charge and the charge of using threats to obstruct an officer 

from performing lawful duties involving Morehouse, not the threats charges involving the 

other victims. 

 

4 Contrary to the italicized language, there was indeed evidence to the effect that 

defendant was a gang member. Morehouse testified as a gang expert that defendant fit 

the criteria of a gang member and admitted to Morehouse that he was a gang member. 

Nonetheless, the gist of the instruction accurately described the limited purpose of the 

evidence to the jury.
13

On appeal, defendant contends the evidence was irrelevant because “Morehouse’s 

belief [that defendant was a gang member] may have affected his fear, but [defendant] 

did not plant the belief or attempt to capitalize on it.” This amounts to a jury argument, 

because if the jury credited Morehouse’s testimony, it could well find defendant--who 

sported a visible gang tattoo and had been arrested by Morehouse the prior year--knew 

that Morehouse knew he was a gang member, and therefore defendant intended his 

threats to be taken seriously. Indeed, the jury could find that defendant explicitly

capitalized on his gang membership by stating, “I promise you, cuz, I’ll get you knocked 

out as soon as you walk out this door.” (Italics added.) This statement indicates 

defendant could arrange to have someone else harm Morehouse, inferentially, one or 

more gang members, if defendant were unable to harm Morehouse personally.

Clearly, this was not cumulative evidence, as the trial court initially ruled. It was 

materially different than Morehouse’s testimony about his prior interaction with 

defendant. Therefore the trial court was correct to revisit the issue. Further, this 

evidence was highly probative, as it distinguished defendant’s threats from the many 

mundane and generally impotent threats Morehouse had received during his career.

Because gang evidence can be highly inflammatory, its admission is limited to 

cases where it is directly relevant to some issue in dispute. “As general rule, evidence of 

gang membership and activity is admissible if it is logically relevant to some material 

issue in the case, other than character evidence, is not more prejudicial than probative and 

is not cumulative. [Citation.] Consequently, gang evidence may be relevant to establish 

the defendant’s motive, intent or some fact concerning the charged offenses other than 

criminal propensity as long as the probative value of the evidence outweighs its 

prejudicial effect. [Citations.] ‘Evidence of the defendant’s gang affiliation--including 

evidence of the gang’s territory, membership, signs, symbols, beliefs and practices, 

criminal enterprises, rivalries, and the like--can help prove identity, motive, modus 
14

operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt 

of the charged crime.’ ” (People v. Albarran (2007) 149 Cal.App.4th 214, 223-224.)

In People v. Mendoza (2000) 24 Cal.4th 130, at page 178, our Supreme Court 

found that a robbery victim’s belief that the robber was a gang member was “directly

relevant to establishing the element of fear” required to establish a robbery. (See also 

People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340-1342 [victim’s knowledge that 

defendant was in a gang could be used to determine how the victim interpreted 

defendant’s threat].) Here, too, as explained ante, the prosecutor had the burden to prove 

to the jury beyond a reasonable doubt that Morehouse, an experienced police officer, was 

placed in “sustained fear” because of defendant’s threatening comments. The evidence 

was highly probative, and was not presented in an inflammatory manner. The risk of 

prejudice was further minimized by the trial court’s limiting instruction. We find no 

error. 

III

Advisement of Rights

Defendant contends--and the People properly concede--that in accepting 

defendant’s admissions to the various prior conviction allegations, the trial court did not 

explicitly advise defendant of two of the three constitutional rights required to be 

included in the advisement. 

The need to advise defendants of the right to a jury trial, the right to confront 

witnesses, and the privilege against self-incrimination, before accepting an admission to a 

prior conviction allegation has been the law for over 40 years. (See In re Yurko (1974) 

10 Cal.3d 857, 863 & fn. 5.) It must be adhered to. However, in this particular instance 

we find no prejudice to defendant.

Immediately after the jury retired to deliberate, defense counsel stated on the 

record that he had discussed the priors with defendant, and defendant wished to 

provisionally admit them. The trial court told defendant he had the right to a jury 
15

determination of the priors, but did not advise him of his right to confront witnesses or 

the privilege against self-incrimination. Defendant had just undergone a jury trial where 

he exercised his privilege against self-incrimination, and observed his attorney crossexamine and thereby confront witnesses against him. We must presume he was aware 

that those rights accompanied the right to a jury determination. (See People v. Mosby

(2004) 33 Cal.4th 353, 356 [“When, immediately after a jury verdict of guilty, a 

defendant admits a prior conviction after being advised of and waiving only the right to 

trial, can that admission be voluntary and intelligent even though the defendant was not 

told of, and thus did not expressly waive, the concomitant rights to remain silent and to 

confront adverse witnesses? The answer is ‘yes,’ if the totality of circumstances 

surrounding the admission supports such a conclusion”].) Further, defendant was no 

stranger to the criminal justice system. (See id at p. 365 [“ ‘a defendant’s prior 

experience with the criminal justice system’ is, as the United States Supreme Court has 

concluded, ‘relevant to the question [of] whether he knowingly waived constitutional 

rights’ ”].) 

Defendant posits that this case falls between cases where no rights are given (e.g., 

People v. Moore (1992) 8 Cal.App.4th 411, 416-418), and cases where two of the three 

rights were given (e.g., People v. Howard (1992) 1 Cal.4th 1132, 1179-1180). We are 

not persuaded. 

First, we do not merely count up rights. We must look at the totality of the 

circumstances, to determine whether the admission was voluntary and intelligent. (See 

People v. Howard, supra, 1 Cal.4th at p. 1175.) Second, the advisement of the right to a 

jury trial incorporates the rights known to a defendant who has just undergone a jury 

trial. That was the central holding of Mosby. (See People v. Mosby, supra, 33 Cal.4th at 

p. 364.) In these circumstances, the trial court’s error was not prejudicial to defendant. 
16

IV

Sentencing

The parties agree that defendant’s two prior serious felony convictions (robbery 

and attempted robbery) were not “brought and tried separately” as provided by section 

667, subdivision (a). Because the two priors were charged together under the same case 

number and adjudicated in the same proceeding, we agree. (See In re Harris (1989) 49 

Cal.3d 131, 136 [brought and tried separately means “the underlying proceedings must 

have been formally distinct, from filing to adjudication of guilt”].)

The People cursorily contend the trial court’s act of imposing but staying 

execution of sentence for one of the priors under section 654 properly implements the 

statute. We disagree.

Section 667, subdivision (a)(1) provides in relevant part that “any person 

convicted of a serious felony who previously has been convicted of a serious felony in 

this state or of any offense committed in another jurisdiction which includes all of the 

elements of any 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. The terms of the present offense and each 

enhancement shall run consecutively.” Parsed as relevant herein, any person convicted of 

a “serious felony” as defined later in the statute “shall receive” on top of the rest of the 

sentence an additional “five-year enhancement for each such prior conviction on charges 

brought and tried separately.” (§ 667, subd. (a)(1).)

“Section 667(a) enhancements must be imposed for each prior serious felony 

conviction ‘separately brought and tried.’ The question whether prior convictions were 

brought and tried separately is for the court to decide, not the jury.” (Couzens et al., 

Sentencing Cal. Crimes (The Rutter Group 2014) § 20:27, p. 20-14; see 3 Witkin & 

Epstein, Cal. Crim. Law (4th ed. 2012) Punishment, § 405, p. 626 [“A 5-year consecutive 

enhancement must be imposed for each prior conviction on charges ‘brought and tried 
17

separately’ ”], id. § 411, p. 636 [“Each prior conviction must stem from ‘charges brought 

and tried separately’ ”].)

Two prior decisions of this court confirm that only those priors brought and tried 

separately qualify. (See People v. Wagner (1994) 21 Cal.App.4th 729, 732-737 

[clarifying what “brought and tried separately” means in practice]; People v. Deay (1987) 

194 Cal.App.3d 280, 286-290 [agreeing that one of two prior serious felony convictions 

had to be vacated because the two were not brought and tried separately].) The gist of 

these holdings is that it is an element of the prior serious felony enhancement that the 

charges be “brought and tried separately” and where, as in this case, multiple serious 

felonies were proven in a single prior proceeding, the People cannot prove more than one 

such enhancement exists.

The People briefly assert that staying the effect of one of the two prior serious 

felonies that were not brought and tried separately is sufficient under the statute, so that a 

defendant only receives punishment for one of them, consistent with the statutory 

purpose, in their view. However, under section 654, a stayed sentence is one that has first 

been imposed, but because of some legal rule must be stayed to prevent the infliction of 

any punishment for such imposed sentence. Imposing a stayed sentence results in the 

receipt of a sentence, albeit one that is not executed absent some subsequent reason to lift 

the stay. (See People v. Alford (2010) 180 Cal.App.4th 1463, 1468-1470.) 

But as outlined above, section 667, subdivision (a)(1) is written so as to require 

that the defendant “shall receive” an extra sentence for and only for those prior 

convictions that were “brought and tried separately” and such requirement is an element 

of the enhancement. Thus, the mere imposition of sentence for a prior conviction that 

was not brought and tried separately runs afoul of the statute, whether or not the sentence 

is executed.

The case authority cited but not analyzed by the People is inapposite, as it involves 

other statutory situations, such as where a prior serious felony conviction enhancement 
18

and a one-year prior prison term enhancement (§ 667.5, subd. (b)) are based on the same 

conviction (People v. Walker (2006) 139 Cal.App.4th 782, 794, fn. 9), or where a trial 

court must choose between alternative sentencing schemes provided by the “one-strike 

law” and the “habitual sexual offender law” (§§ 667.61, 667.71; see People v. Lopez

(2004) 119 Cal.App.4th 355, 360-366). Both of the People’s cases in turn relied on a 

sentencing rule providing as follows: “No finding of an enhancement may be stricken or 

dismissed because imposition of the term either is prohibited by law or exceeds 

limitations on the imposition of multiple enhancements. The sentencing judge must 

impose sentence for the aggregate term of imprisonment computed without reference to 

those prohibitions and limitations, and must thereupon stay execution of so much of the 

term as is prohibited or exceeds the applicable limit. The stay will become permanent on 

the defendant’s service of the portion of the sentence not stayed.” (Cal. Rules of Court, 

rule 4.447.)5 

Rule 4.447 begins by stating, “No finding of an enhancement may be stricken or 

dismissed” to comply with legal limitations. One of the People’s cited cases emphasizes 

that “A stay under rule 4.447 is not issued under Penal Code section 654. Nevertheless, it 

is analogous.” (People v. Lopez, supra, 119 Cal.App.4th at p. 365.) 

In the instant case, the finding that two serious priors existed was itself erroneous, 

because those priors were not brought and tried separately. Thus rule 4.447 never came 

into play.6

 

5

 Further references to rules are to the California Rules of Court.

6

 We note the comment to rule 4.447 references illustrative statutes that would trigger it, 

including section 667, subdivision (a)(2), but not subdivision (a)(1). (See Advisory Com. 

com., 23 pt. 1B West’s Ann. Codes, Court Rules (2006) foll. rule 4.447, p. 325.) 

People v. Gonzalez (2008) 43 Cal.4th 1118, involving multiple firearm enhancements, 

addressed section 12022.53, subdivision (f)’s requirement that only one additional term 

therefor may be imposed. Gonzalez explained “impose” can mean impose and execute or 
19

DISPOSITION

The judgment is modified by vacating the prior serious felony the trial court 

imposed but stayed under section 654. As modified, the judgment is affirmed. The trial 

court shall prepare and forward to the Department of Corrections and Rehabilitation a 

certified copy of an amended abstract of judgment. 

 DUARTE , J.

We concur:

 ROBIE , Acting P. J.

 MAURO , J.

 

impose and stay, and held the proper way to handle multiplicative firearm enhancements 

is to impose sentence on each, and stay execution of sentence on all but one. (Gonzalez, 

at pp. 1124-1130.) But nothing in Gonzalez addressed section 667, subdivision (a), 

which requires that multiple prior convictions be proven to have been brought and tried 

separately before found to be valid enhancements and sentence imposed therefor.