People v. Goss

Opinion

HARRIS, J. Statement of the Case

On July 16, 1990, an information was filed in Stanislaus County Superior Court charging appellant Benjamin Patrick Goss with violation of Penal Code section 459, burglary with intent to commit rape. The information also alleged an enhancement pursuant to Penal Code section 667 for three prior serious felony convictions: conviction of murder, rape and robbery on March 17, 1978 (later amended to Apr. 14, 1978). Appellant pleaded not guilty and denied the prior convictions.

On January 17, 1991, appellant waived his right to a jury trial.

On January 22, 1991, a bench trial was held. Appellant moved for acquittal of both the charged offense and the enhancements pursuant to Penal Code section 1118. The court denied the motion as to the charged offense, but reserved ruling on the priors. At the close of the defense evidence, the court found appellant guilty of first degree burglary.

On February 19, 1991, the court denied appellant’s acquittal motion as to the priors and allowed the prosecution to reopen its case to prove the enhancements.

On February 25, 1991, the court found the priors to be true. The court denied probation and appellant was sentenced to an aggregate term of eleven years in state prison: the upper term of six years for burglary plus a consecutive five-year term for the prior murder conviction. Appellant was not sentenced on the other two priors because they had been tried together rather than “brought and tried separately” pursuant to Penal Code section 667, subdivision (a).

On March 7, 1991, appellant timely filed a notice of appeal.

[705]Statement of Facts, I *

II.

The Prosecution Was Properly Allowed to Reopen to Prove the

Enhancements.

The information filed against appellant also alleged that he suffered three prior serious felony convictions pursuant to Penal Code section 667. On January 17, 1991, appellant waived his right to a jury trial. On January 22, 1991, the bench trial was held. The prosecution rested its case-in-chief without offering any evidence as to the alleged prior convictions. Appellant moved for an acquittal, pursuant to Penal Code section 1118, of both the primary charge and the enhancements. The prosecutor thought that the priors could not be proven until after a conviction on the primary offense. Defense counsel replied that he never made a motion to sever the enhancements, and they were part of the case-in-chief. The court took the matter under submission and reserved a ruling. The trial continued with appellant’s testimony.