People v. Winslow (40 Cal. App. 4th 680, 1995)

Opinion

YEGAN, J.

The word “enhancement” is bound to send shivers down the spine of any person charged with a felony. In some cases, such as the instant one, punishment for the enhancement may exceed the punishment for the underlying substantive offense. As the moving party in a criminal action, it is the People’s obligation not only to plead and prove an enhancement, but also to tender adequate instructions and verdict forms so that a lawful determination can be made and sustained on appeal. All too frequently, this responsibility is lost upon the prosecutor who concentrates on the substantive charge or charges.

The CALJIC committee has provided a general framework for the jury’s resolution of enhancements. (See CALJIC No. 17.15 et seq.) However, the statutory enhancement scheme is so complex that the CALJIC committee has not drafted instructions for each and every situation. (See CALJIC No. 17.24.1 and Use Note.)

We agree with the previously articulated criticism of the Determinate Sentencing Act of 1976. It is capable of trapping everyone, even those who profess expertise. Our colleagues’ views have gone unheard in the Legislature. Sentencing issues continue to be in vogue and grow in complexity. (See e.g., People v. McKee (1995) 36 Cal.App.4th 540, 543 [42 Cal.Rptr.2d 707].) Here, the prosecutor did not tender adequate instructions and the trial court did not adequately instruct on the general principles of law governing enhancements. Nevertheless, applying the recently articulated test of harmless error in People v. Wims (1995) 10 Cal.4th 293 [41 Cal.Rptr.2d 241, 895 P.2d 77], we conclude that reversal for a new trial on the enhancements is not here required.

Anthony Franel Winslow appeals following his conviction by jury of residential burglary (Pen. Code, §§ 459 and 460). The jury also found that he suffered two prior felony convictions resulting in prison terms (§ 667.5, subd. (b)) and a separate and distinct prior “serious felony” conviction (§ 667, subd. (a)(1)). He was sentenced to an aggregate unstayed term of seven years: the low term of two years for the burglary and five years for the “serious felony” enhancement. The sentence on the section 667.5, subdivision (b) prior prison term enhancements was stayed.

Appellant contends, inter alia: “I The trial court erred in denying the motion to strike the alleged Nevada prior conviction. [<|] II Even if the trial court did not err in failing to strike the Nevada prior, it remained to be an issue of fact for the jury to determine whether appellant had personally used a firearm in its commission. [*50 HI The trial court committed reversible error in the manner the jury was instructed on the issue of the Nevada prior. [