People v. Jimenez CA2/4 ( 2016 )


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  • Filed 5/9/16 P. v. Jimenez CA2/4
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
    California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
    publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
    or ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION FOUR
    THE PEOPLE,                                                           B262250
    Plaintiff and Respondent,                                   (Los Angeles County
    Super. Ct. No. KA103273)
    v.
    JOSHUA CAIN JIMENEZ,
    Defendant and Appellant.
    APPEAL from judgment of the Superior Court of Los Angeles County,
    Bruce F. Marrs, Judge. Affirmed in part, reversed in part, and remanded with
    directions.
    Janet Uson, under appointment by the Court of Appeal, for Defendant and
    Appellant.
    Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
    Attorney General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle
    and Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.
    ___________________________________________
    INTRODUCTION
    Joshua Cain Jimenez appeals from a judgment and sentence, following his
    conviction for making criminal threats against his estranged wife, Cynthia
    Castaneda. He contends (1) that the trial court erred in admitting prior uncharged
    crimes and other character evidence, (2) that the court erred in not instructing the
    jury, sua sponte, that his out-of-court statements should be viewed with caution;
    and (3) that there was insufficient evidence to support his conviction. He further
    1
    contends that the court abused its discretion in denying his Romero motion to
    strike prior “strikes,” and that it improperly imposed two five-year enhancements
    2
    under Penal Code section 667, subdivision (a)(1). For the reasons set forth below,
    we will affirm the conviction, vacate one five-year enhancement, and remand for
    resentencing.
    PROCEDURAL HISTORY
    Appellant was charged in an information with first degree burglary of
    Castaneda’s residence (§ 459; count 1), and making criminal threats against
    Castaneda and their daughter, N. (§ 422, subd. (a); counts 2 & 3). It was further
    alleged that appellant had suffered two strikes within the meaning of the “Three
    Strikes” law, had two prior serious felonies within the meaning of section 667,
    subdivision (a)(1), and had served five prior prison terms.
    A jury convicted appellant of count 2 (criminal threats against Castaneda)
    and acquitted him of the remaining counts. In a bifurcated proceeding, the trial
    court found true allegations that appellant had suffered two strikes and that he had
    1
    People v. Superior Court (Romero) (1996) 
    13 Cal. 4th 497
    .
    2
    All further statutory citations are to the Penal Code, unless otherwise stated.
    2
    been convicted of two serious felonies under section 667, subdivision (a). The
    court also found true four of the prior prison term allegations.
    Although the trial court denied appellant’s Romero motion to strike either of
    his prior “strikes,” it struck the four prior prison term allegations. The court
    sentenced appellant to 25 years to life, plus five years for each of the two section
    667, subdivision (a)(1) enhancements, for a total of 35 years to life.
    Appellant timely appealed from the judgment.
    FACTUAL BACKGROUND
    Castaneda testified that she married appellant in 2004, but that they
    separated in 2009. Over defense objections, Castaneda explained that the
    separation resulted from appellant’s physical and verbal abuse due to his drug
    habit. Castaneda also stated that after they separated, appellant did not pay child
    support.
    On April 16, 2012, appellant called Castaneda, and threatened her, saying he
    would “blow your fuckin’ head off.” Castaneda believed appellant’s threat
    because “[h]e always carrie[d] a gun, had guns on him.” Appellant subsequently
    pled no contest to making criminal threats.
    On May 25, 2012, Castaneda called 911 after appellant came to her
    residence and “pound[ed]” on her door. She also called 911 on March 27, 2012,
    after appellant broke into her gated community and began chasing her then-
    boyfriend.
    On September 12, 2013, Castaneda, N. and appellant were in a vehicle when
    an altercation erupted between Castaneda and appellant. Castaneda caught
    appellant looking through her purse, wallet and cell phone. She thought he might
    have taken some money because he had stolen her credit card before. Appellant
    3
    began yelling at Castaneda and called her a “whore.” In response, Castaneda
    reminded appellant that he talked to other girls, including a girl who had called him
    for drugs. Appellant denied supplying drugs. Eventually Castaneda drove to
    appellant’s mother’s house. She tried to drop appellant off, but he refused to leave.
    He grabbed her hand, and Castaneda swung her arms at appellant, scratching him
    in the face with the ring on her hand. As a result of the incident, Castaneda
    pleaded no contest to a misdemeanor count of inflicting corporal injury on a spouse
    or ex-spouse. Castaneda also was served with a restraining order, keeping her
    away from appellant.
    On September 18, 2013, Castaneda filed for a restraining order against
    appellant after he called her family and friends and showed up at her house at
    “weird hours of the night.” She kept a copy of the restraining order on the night
    stand next to her bed. However, the restraining order was never served on
    appellant.
    On September 23, 2013, Castaneda was sleeping with their daughter, N.,
    when she felt some water on her face. When she opened her eyes, appellant was
    standing next to the bed. Castaneda “freaked out.” She testified that appellant did
    not have keys to her residence, that he was not allowed to live there, and that she
    did not invite him over.
    Appellant told Castaneda to “shut the fuck up, don’t scream.” He also told
    her to do whatever he said and threatened to “blow [her] head off.” Castaneda
    retrieved the restraining order from her night stand. She told appellant: “[T]here’s
    a restraining order on you. Why are you here[?]” Appellant responded that he did
    not care about the restraining order. He told her to “shut up,” and said he had a
    gun. Castaneda believed him.
    4
    Castaneda picked up her daughter and walked toward her father’s room.
    Appellant followed them, grabbing and pulling on Castaneda’s hair. Appellant
    then stated he was “gonna blow that little bitch’s brains out,” referring to N.
    Castaneda managed to reach her father’s room and went inside; her father was not
    there. She tried to close the door, but appellant pushed it open. During the
    struggle, Castaneda saw a gun in appellant’s pocket. She told him, “[S]top, you’re
    scaring the baby.” Appellant told N. to “come here,” but she refused. He told N.
    that if she did not come to him, he would hurt her. Appellant then told Castaneda
    he would ruin her life, which Castaneda understood to mean that appellant would
    put her in jail and make her lose her nursing license.
    Castaneda went to her brother’s room with N. The door was locked, and
    Castaneda tried to pick the lock with her fingernail. When her brother opened the
    door, appellant ran down the stairs and exited by the front door.
    Castaneda then called 911. A recording of the 911 call was played for the
    jury. During the call, Castaneda told the 911 operator that appellant had broken
    into her house and threatened to kill her “whole family” if she called the police.
    She told the operator that appellant was on parole and that she had been trying to
    serve him with a restraining order. When asked whether she saw a gun, Castaneda
    stated she did not, but noted that he lied often.
    Castaneda was later interviewed by a police officer, and a recording of that
    interview was played for the jury. Castaneda told the officer that appellant would
    hang out with gang members. Her statements regarding the instant incident were
    consistent with her trial testimony, except she did not mention seeing a gun. At
    trial, she explained that she was scared to mention the gun to the 911 operator or
    the officer due to appellant’s prior threats.
    5
    On cross-examination, defense counsel stated: “Now, you’ve mentioned
    that Mr. Jimenez is a gang member, right?” Castaneda responded: “Well, when I
    met him, I didn’t -- he was cleaned up. He told me he wasn’t involved in anything.
    He was working.” Counsel also asked Castaneda why she told the 911 dispatcher
    that she was unsure whether appellant was lying when he said he had a gun.
    Castaneda explained that appellant had twice pulled a gun on her, and she ended up
    in the hospital after being beaten by appellant. Asked whether she called the
    police, Castaneda replied, “Yes.” Counsel then asked what happened to the case,
    and Castaneda responded that, “It should be in his record.” Counsel inquired about
    the dates of the incidents, and Castaneda responded that it was in 2005 or 2006.
    Counsel also asked Castaneda to explain why appellant would say that a
    restraining order would not stop him. Castaneda explained that appellant had
    ignored a prior restraining order.
    On redirect, the prosecutor used appellant’s prior convictions to refresh
    Castaneda’s recollection of the dates appellant physically abused her and violated a
    restraining order. Castaneda confirmed that appellant was arrested for beating her
    on March 15, 2005 and June 13, 2006, and that he was arrested for violation of a
    protective order on March 24, 2009.
    N., who was six years old at the time of the incident, testified that she woke
    up when Castaneda went to the restroom. N. saw appellant “pop[ ] out” and heard
    him say something to Castaneda. Castaneda came back into the bedroom, and N.
    heard her say, “[T]here’s a restraining order, you can’t go near us.” Appellant then
    threw Castaneda’s cell phone at her. N. and her mother went to her grandfather’s
    and uncle’s rooms. They could not get into the uncle’s room because it was
    locked. N. observed appellant pulling Castaneda’s hair, and she heard appellant
    6
    tell Castaneda that he would “try to get” N. Appellant also said he would “blow
    our heads off.” N. was scared when she saw that appellant had a gun.
    The officer who interviewed Castaneda also interviewed N. The recording
    of the interview was played for the jury. In the interview, N. stated that appellant
    had broken into the house and told Castaneda that he would kill her (Castaneda).
    N. said appellant told her he missed her. She did not say that appellant threatened
    to kill her, or that he had a gun.
    Appellant did not testify.
    DISCUSSION
    A.     The Trial Court Committed No Reversible Error in Admitting
    Evidence of Prior Criminal Convictions and Other Character Evidence.
    Appellant contends the trial court abused its discretion in admitting (1) his
    conviction for making criminal threats against Castaneda on April 16, 2012,
    (2) other prior uncharged acts, and (3) other character evidence under Evidence
    Code section 1101. Evidence Code section 1101provides in relevant part:
    “(a) Except as provided in this section and in Section[] . . . 1109, evidence of a
    person’s character or a trait of his or her character (whether in the form of an
    opinion, evidence of reputation, or evidence of specific instances of his or her
    conduct) is inadmissible when offered to prove his or her conduct on a specified
    occasion. [¶] (b) Nothing in this section prohibits the admission of evidence that a
    person committed a crime, civil wrong, or other act when relevant to prove some
    fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity,
    absence of mistake or accident, . . .) other than his or her disposition to commit
    such an act.” Evidence Code section 1109 provides that subject to exceptions not
    at issue in this case, “in a criminal action in which the defendant is accused of an
    7
    offense involving domestic violence, evidence of the defendant’s commission of
    other domestic violence is not made inadmissible by Section 1101 if the evidence
    is not inadmissible pursuant to Section 352.”3 Evidence Code section 352
    provides: “The court in its discretion may exclude evidence if its probative value
    is substantially outweighed by the probability that its admission will (a) necessitate
    undue consumption of time or (b) create substantial danger of undue prejudice, of
    confusing the issues, or of misleading the jury.” The trial court’s rulings under
    Evidence Code sections 352, 1101, and 1109 are reviewed for abuse of discretion.
    (See People v. Foster (2010) 
    50 Cal. 4th 1301
    , 1328; People v. Kipp (1998)
    
    18 Cal. 4th 349
    , 369.)
    Here, over defense counsel’s Evidence Code section 352 objection, the trial
    court ruled that evidence of prior acts of domestic violence and threats was
    admissible to establish a “foundation” for the “reasonableness of [Castaneda’s]
    fear on the particular date in question.” Whether a criminal threat caused a victim
    to sustain reasonable fear is an element of a section 422 offense. (See People v.
    Toledo (2001) 
    26 Cal. 4th 221
    , 227-228 [enumerating elements of section 422
    offense].) Thus, evidence that appellant had made prior threats or was capable of
    carrying out his charged threats was admissible, subject to Evidence Code section
    352. (See People v. Malone (1988) 
    47 Cal. 3d 1
    , 18 [“to be admissible, evidence of
    other crimes must be relevant to some material fact in issue, must have a tendency
    3
    “Domestic violence” is defined as “abuse” committed against “a spouse,
    former spouse, cohabitant, former cohabitant, or a person with whom the suspect
    has had a child or is having or has had a dating or engagement relationship.”
    “Abuse” is “intentionally or recklessly causing or attempting to cause bodily
    injury, or placing another person in reasonable apprehension of imminent serious
    bodily injury to himself or herself, or another.” (§ 13700.) Family Code section
    6211 extends domestic abuse to include abuse against a child of a party or any
    “other person related by consanguinity or affinity within the second degree.”
    8
    to prove that fact, and must not contravene other policies limiting admission, such
    as Evidence Code section 352”]; People v. McCray (1997) 
    58 Cal. App. 4th 159
    ,
    172 [evidence of defendant’s past domestic abuse victim was admissible under
    Evidence Code section 1101, as it was relevant to prove defendant’s threats
    reasonably caused victim to fear for her safety]; see also People v. Chacon (1968)
    
    69 Cal. 2d 765
    , 777 [“When a prior conviction is an essential element of an offense,
    it is admitted to prove something other than the defendant's bad character, and is
    admissible for that purpose”], overruled in part on other grounds by People v.
    Doolin (2009) 
    45 Cal. 4th 390
    .) Thus, evidence that appellant was a parolee,
    associated with gang members, always carried guns, ignored valid restraining
    orders, and had prior convictions for criminal threats and domestic abuse was
    admissible under Evidence Code section 1101. Moreover, evidence of prior
    domestic abuse was independently admissible under Evidence Code section 1109.
    Finally, such evidence was not inadmissible under Evidence Code section 352, as
    it was probative of the reasonableness of Castaneda’s fear, did not necessitate
    undue consumption of time, and was not unduly prejudicial. (See People v.
    
    McCray, supra
    , 58 Cal.App.4th at p. 173 [“Given the relevance and probative
    value of the evidence of past domestic violence, it is clear the court did not abuse
    its discretion in finding the probative value was not ‘substantially outweighed by
    the probability that its admission [would] . . . create substantial danger of undue
    prejudice.’ (Evid. Code, § 352.)”]; see also People v. Padilla (1995) 
    11 Cal. 4th 891
    , 924 [“although the record must affirmatively show that the trial court weighed
    prejudice against probative value in admitting evidence of prior bad acts
    [citations], the trial judge ‘need not expressly weigh prejudice against probative
    9
    value -- or even expressly state that he has done so [citation.].’”], overruled on
    4
    another point in People v. Hill (1998) 
    17 Cal. 4th 800
    , 823, fn. 1.)
    As to evidence that appellant abused drugs, never paid child support, had
    stolen Castaneda’s credit card and was a possible drug supplier, any error in
    admitting such evidence was harmless. (See People v. 
    Malone, supra
    , 47 Cal.3d at
    p. 22 [erroneous admission of other crimes-evidence reviewed under People v .
    Watson (1956) 
    46 Cal. 2d 818
    (Watson)].) The references were fleeting and the
    evidence not more prejudicial than other admissible character evidence. More
    important, as discussed below, Castaneda and N. consistently testified that
    appellant threatened to kill Castaneda. Thus, it is not reasonably probable that the
    result would have been more favorable to appellant had this character evidence
    been excluded.
    4
    Appellant contends the prior criminal conviction for making criminal threats
    was not admissible under Evidence Code section 1101 to show a common plan or
    absence of mistake, as the prior incident was substantially dissimilar from the
    instant incident. We need not address this contention, as we conclude the evidence
    was admissible to prove Castaneda’s fear was reasonable.
    Appellant further contends that the two prior incidents of abuse resulting in
    Castaneda’s hospitalization were inadmissible under Evidence Code section 1109,
    as those incidents occurred 2005 and 2006, more than seven years before the
    current incident. Evidence Code section 1109 has a five-year limitations period for
    “domestic violence” within the meaning of Family Code section 6211, but a 10-
    year limitations period for “domestic abuse” within the meaning of Penal Code
    section 13700. As “domestic violence” under Penal Code section 13700 includes
    abuse of a spouse or former spouse, the prior incidents in 2005 and 2006 fell
    within the 10-year limitations period in Evidence Code section 1109, and were
    presumptively admissible.
    10
    B.     The Evidence was Sufficient to Sustain Appellant’s Conviction for
    Criminal Threats.
    Appellant contends the evidence was insufficient to support his conviction
    for making criminal threats against Castaneda. “In determining whether the
    evidence is sufficient to support a conviction . . . , ‘the relevant question is
    whether, after viewing the evidence in the light most favorable to the prosecution,
    any rational trier of fact could have found the essential elements of the crime
    beyond a reasonable doubt.’ [Citations.] Under this standard, ‘an appellate court
    in a criminal case . . . does not ask itself whether it believes that the evidence at the
    trial established guilt beyond a reasonable doubt.’ [Citation.] Rather, the
    reviewing court ‘must review the whole record in the light most favorable to the
    judgment below to determine whether it discloses substantial evidence -- that is,
    evidence which is reasonable, credible, and of solid value -- such that a reasonable
    trier of fact could find the defendant guilty beyond a reasonable doubt.’
    [Citation.]” (People v. Vy (2004) 
    122 Cal. App. 4th 1209
    , 1224, italics omitted.)
    “In deciding the sufficiency of the evidence, a reviewing court resolves neither
    credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and
    inconsistencies in the testimony is the exclusive province of the trier of fact.
    [Citation.] Moreover, unless the testimony is physically impossible or inherently
    improbable, testimony of a single witness is sufficient to support a conviction.
    [Citation.]” (People v. Young (2005) 
    34 Cal. 4th 1149
    , 1181.)
    “In order to prove a violation of section 422, the prosecution must establish
    all of the following: (1) that the defendant ‘willfully threaten[ed] to commit a
    crime which will result in death or great bodily injury to another person,’ (2) that
    the defendant made the threat ‘with the specific intent that the statement . . . is to
    be taken as a threat, even if there is no intent of actually carrying it out,’ (3) that
    11
    the threat -- which may be ‘made verbally, in writing, or by means of an electronic
    communication device’ -- was ‘on its face and under the circumstances in which it
    [was] made, . . . so unequivocal, unconditional, immediate, and specific as to
    convey to the person threatened, a gravity of purpose and an immediate prospect of
    execution of the threat,’ (4) that the threat actually caused the person threatened ‘to
    be in sustained fear for his or her own safety or for his or her immediate family's
    safety,’ and (5) that the threatened person’s fear was ‘reasonabl[e]’ under the
    circumstances.” (People v. 
    Toledo, supra
    , 26 Cal.4th at pp. 227-228, quoting
    § 422.)
    Here, Castaneda testified that she was scared because appellant threatened to
    kill her (“blow your head off”), and N. testified that appellant said he would “blow
    our heads off.” Pointing to inconsistencies between their trial testimony and prior
    statements, appellant argues that Castaneda’s and N.’s testimony was “inherently
    insubstantial and unreliable.” As noted, however, we do not resolve factual
    conflicts or reweigh evidence. Moreover, the inconsistencies between the trial
    testimony and prior statements to law enforcement or the 911 operator involved (1)
    whether Castaneda and N. saw a gun, and (2) whether appellant threatened to kill
    N. Both Castaneda and N. consistently stated that appellant threatened to kill
    Castaneda, and the recorded 911 call and the taped police interviews confirmed
    these accounts. Their testimony was not physically impossible or inherently
    improbable. Accordingly, substantial evidence supported appellant’s conviction.
    C.     Any Error in Failing to Instruct the Jury that Appellant’s Out-of-
    Court Statements Should be Viewed With Caution was Harmless.
    Appellant contends he was denied due process and a fair trial as a result of
    the trial court’s failure to instruct the jury, sua sponte, that his statements that he
    12
    would kill Castaneda should be considered with caution. Appellant notes that at
    the time of his trial, California courts had a sua sponte duty to give such a
    cautionary instruction. (See, e.g., People v. McKinnon (2011) 
    52 Cal. 4th 610
    , 679
    [“It is well established that the trial court must instruct the jury on its own motion
    that evidence of a defendant’s unrecorded, out-of-court oral admissions should be
    viewed with caution.”].) However, in a case decided after appellant’s trial, the
    California Supreme Court held the trial court has no sua sponte duty to give the
    cautionary instruction “when the statements at issue form the basis of a prosecution
    for making criminal threats.” (People v. Diaz (2015) 
    60 Cal. 4th 1176
    , 1181
    (Diaz).) In Diaz, the Supreme Court noted that “[t]he cautionary instruction is
    concerned with the reliability and credibility of the witness who testifies about the
    defendant’s statements.” (Id. at p. 1187.) However, as “courts are now required to
    instruct the jury, in all criminal cases, concerning the general principles that apply
    to their consideration of witness testimony” (Id. at p. 1190; see also People v.
    Rincon-Pineda (1975) 
    14 Cal. 3d 864
    , 883-884), “the cautionary instruction on
    defendant’s statements is no longer so necessary to the jury’s understanding of the
    case as to require the court to give it sua sponte.” (See 
    Diaz, supra
    , 60 Cal.4th at
    p. 1191.) Thus, trial courts have no sua sponte duty to give the cautionary
    instruction. (Id. at p. 1190.)
    We need not address appellant’s contention that Diaz should not be applied
    retroactively, as any instructional error was harmless. (See 
    Diaz, supra
    , 60 Cal.4th
    at p. 1195 [failure to give cautionary instruction reviewed for harmless error under
    Watson].) The jury was instructed on assessing witness credibility and the
    prosecution’s burden of proof beyond a reasonable doubt. “‘[W]hen the trial court
    otherwise has thoroughly instructed the jury on assessing the credibility of
    witnesses, we have concluded the jury was adequately warned to view their
    13
    testimony with caution.’” (
    Diaz, supra
    , 60 Cal.4th at p. 1196, quoting People v.
    
    McKinnon, supra
    , 52 Cal.4th at p. 680.) Moreover, as discussed above, Castaneda
    and N. consistently and independently stated that appellant threatened to kill
    Castaneda. Even if viewed with caution, their testimony was compelling. (See
    
    Diaz, supra
    , 60 Cal.4th at pp. 1195-1196 [error in failing to give cautionary
    instruction harmless where witnesses’ testimony regarding substance and meaning
    of defendant’s threatening statements largely consistent]; People v. Dickey (2005)
    
    35 Cal. 4th 884
    , 906 [where there was no conflict in the evidence, “but simply a
    denial by the defendant that he made the statements attributed to him, we have
    found failure to give the cautionary instruction harmless”].) Thus, it is not
    reasonably probable the jury would have reached a result more favorable to
    appellant had the cautionary instruction been given.
    D.     The Trial Court did not Abuse its Discretion in Denying Appellant’s
    Romero Motion to Strike Prior “Strikes.”
    Appellant next contends that the court abused its discretion in denying his
    motion to strike one or both of his prior “strikes.” “[I]n ruling whether to strike or
    vacate a prior serious and/or violent felony conviction allegation or finding under
    the Three Strikes law, . . . the court in question must consider whether, in light of
    the nature and circumstances of [the defendant’s] present felonies and prior serious
    and/or violent felony convictions, and the particulars of his background, character,
    and prospects, the defendant may be deemed outside the scheme’s spirit, in whole
    or in part, and hence should be treated as though he had not previously been
    convicted of one or more serious and/or violent felonies.” (People v. Williams
    (1998) 
    17 Cal. 4th 148
    , 161.) “[A] trial court will only abuse its discretion in
    failing to strike a prior felony conviction allegation in limited circumstances,” such
    14
    as where the resulting sentence is “‘“arbitrary, capricious or patently absurd”’”
    under the specific facts of a particular case. (People v. Carmony (2004) 
    33 Cal. 4th 367
    , 378.)
    In denying appellant’s Romero motion, the trial court stated: “I’m looking at
    a[n] individual who has prior convictions for the exact same offenses for which he
    was charged here. The record goes all the way back to 1997 with a two-year state
    prison tour; another one out of Orange County, inflicting corporal injury on [a]
    spouse in ’06, misdemeanor; miscellaneous other odds and ends; manufacturing
    and possession of a dangerous weapon in ’06; a [Vehicle Code section] 10851 in
    ’09; a burglary in ’11; a 422 in ’12; a burglary in ’13; and this matter in ’13. I
    don’t see any improvement. I don’t see any likelihood of improvement. Romero
    requires that I make a positive finding this gentleman’s outside the spirit of Three
    Strikes and I certainly cannot do that on the record that I have before me.”
    On this record, there was no abuse of discretion. The trial court considered
    the relevant facts and properly exercised its discretion in denying appellant’s
    Romero motion.
    E.       Appellant was Subject to Only One Five-Year Enhancement Under
    Section 667.
    Finally, appellant contends that only one five-year enhancement for his two
    serious felony convictions may be imposed because the underlying charges were
    not brought and tried separately. The People concede the point. (See In re Harris
    (1989) 
    49 Cal. 3d 131
    , 135 [under section 667, to impose two five-year
    enhancements for serious felony convictions, underlying convictions must be
    brought and tried in separate proceedings].) Accordingly, we will vacate one five-
    year enhancement and remand for resentencing. (Id. at p. 137.)
    15
    DISPOSITION
    The conviction is affirmed, one of the five-year enhancements under Penal
    Code section 667, subdivision (a)(1) is vacated, and the matter is remanded for
    resentencing.
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
    MANELLA, J.
    We concur:
    WILLHITE, Acting P. J.
    COLLINS, J.
    16