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 *739concurrent with this sentence; and, additionally, that the People will recommend that Mr. Wagner be housed at the Youth Authority . . . .”
Next, although defendant was explained the charges as to each complaint and pled guilty to each complaint, the waiver of specific rights was jointly done as to both charged offenses. Thus, for example:
“Magistrate: Sir, as to both counts in both Complaints are you pleading freely and voluntarily?
“The Defendant: Yes.
“Magistrate: And are you doing so on both cases with advice of your counsel?
“The Defendant: Yes.
“Magistrate: And in both cases are you pleading guilty because you are in fact guilty of both offenses?
“The Defendant: Yes.
“Magistrate: I find there is a factual basis for both pleas in this case. I further find that both pleas were made and all waivers were made knowingly, intelligently, and voluntarily. I accept and approve the plea and conditions previously stated.”
In addition the defendant was jointly sentenced for both offenses in a single proceeding.
II
Penal Code section 667 requires that each prior serious felony arise “on charges brought and tried separately.” That makes for two distinct elements. In re Harris (1989) 49 Cal.3d 131 [260 Cal.Rptr. 288, 775 P.2d 1057], upon which the majority rely, says that this phrase “is similar to language contained in former section 644 [upon charges separately brought and tried], a habitual criminal statute . . . .” (Id. at p. 135.) It views the language of section 667 as “virtually identical to that which appeared in former section 644 . . . .” (49 Cal.3d at p. 136.) For that reason, it says: “ 1 “ ‘the presumption is almost irresistible’ ” that the terms have been used “ ‘in the precise *740and technical sense which had been placed upon them by the courts.’ ” ’ ” (Ibid.) It quotes with approval the test applied to Penal Code section 644 taken from People v. Ebner (1966) 64 Cal.2d 297, 304 [49 Cal.Rptr. 690, 411 P.2d 578], in which, as Harris notes, the “court construed the phrase [in former section 644] to ‘signif[y] that . . . prior felony proceedings must be totally separate, not only during proceedings before trial but also as to those leading to the ultimate adjudication of guilt.’ ” (In re Harris, supra, 49 Cal.3d at p. 135, italics added.)
Ebner there referred to the meaning of “tried separately.” Ebner says: “The term ‘tried,’ as used in the context of the statutory phrase, ‘charges separately brought and tried,’ signifies that the two prior felony proceedings must be totally separate, not only during proceedings before trial but also as to those leading to the ultimate adjudication of guilt.” (64 Cal.2d at p. 304.) In re Harris also points out, again relying upon Ebner, that “. . . there is ‘no distinction between an adjudication of guilt based on a plea of guilt and that predicated on a trial on the merits.’ ” (49 Cal.3d at p. 135.)
Putting these principles together, prior offenses are not “tried separately” unless inter alia the “ultimate adjudication of guilt”—in this case the pleas— are made in “felony proceedings [that are] totally separate” including all those “leading to the ultimate adjudication of guilt.” (Italics added.) If that were not the case, the sole measure of separability would be the actions taken on the “formal” pleadings—the charges—eliminating thereby the distinct requirement that the offenses be “tried separately.” Put another way, the term “tried separately” would have no meaning if the sole measure were the “formal” distinctness of two parts of a single proceeding, viewed as emanating from separate charging documents.
Yet, that is what the opinion in this case comes down to. It says: “The underlying proceedings resulting in these convictions were formally distinct, from filing to adjudication of guilt.” (Maj. opn., ante, at p. 737.) It further says: “The defendant’s two prior convictions . . . originated in separate complaints. As part of defendant’s plea agreement, the complaints retained their separate character and defendant entered a separate plea on each complaint. A distinction was made between the two cases throughout both the plea hearing and the sentencing hearing. Defendant was sentenced separately for each offense . . . .” (Ibid.)
If this case had resulted in a consolidated joint trial on the merits, predicated upon separate pleadings, it could not be said that the defendant was “tried separately.” Since the pleas are equivalent to a trial their taking in a joint proceeding is the equivalent of a joint trial on the merits for purposes *741of Penal Code section 667. The fact that ordinarily no formal mechanism is invoked for the consolidation of the proceedings for the taking of joint pleas, as distinguished from joint trials, is a distinction without a difference. If the majority opinion is allowed to stand, defense counsel would be well advised to seek the formal consolidation of cases separately pled preliminary to the taking of joint pleas.
The majority opinion goes wrong in reading the “formally distinct” language in In re Harris (49 Cal.3d at p. 136) as bearing on the meaning of “separately tried.” In Harris the two candidate convictions resulted from charges that had been initiated through the filing of a single complaint in the municipal court, which were thereafter prosecuted in the superior court under separate informations to which separate guilty pleas were entered. The court concluded that “. . . as the record plainly reveals, the charges in question were not ‘brought . . . separately,’ but were made in a single complaint.” {Ibid.., italics added.) Thus, when the court says that the “convictions must have been made in proceedings that were formally distinct” (p. 133), it is referring to but one of two elements of Penal Code section 667. The “formally distinct” test is obviously appropriate to the question whether the “charges” were separately brought but not to the wholly different question whether the charges, however brought, were “separately tried.” On the latter point, the test is appropriately that advanced in Ebner, whether the entire “felony proceedings . . . leading to the ultimate adjudication of guilt” are “totally separate.”
In re Harris, which arose on habeas corpus, notably did not adopt the analysis advanced by the court which considered the same case on appeal. (People v. Harris (1987) 192 Cal.App.3d 1197.) People v. Harris, on facts much like those here, held that the defendant was not tried separately for the reason that “[tjhere is no evidence . . . that the cases were consolidated prior to the defendant’s plea. Although the pleas were taken at the same time and the defendant was sentenced on the same day, these facts alone cannot overcome the sentencing judge’s finding that the two cases were tried separately.” (Id. at p. 1202.)
People v. Harris rejected the idea, central to In re Harris, that Penal Code section 667 uses a phrase that is “virtually identical” to that in former section 644 and “ ‘that [its] terms have been used “ ‘in the precise and technical sense which had been placed upon them by the courts.’ ” ’ ” (In re Harris, supra, 49 Cal.3d at p. 136.) People v. Harris, to the contrary, emphasized that “. . . section 667 ... is worded differently from old section 644.” (192 Cal.App.3d at p. 1202.)
*742For that reason no doubt People v. Harris did not, as In re Harris does, rely upon the rule of People v. Ebner, supra, a case interpreting Penal Code section 644, that to be “tried separately” the “ \ . . prior felony proceedings must be totally separate ... as to [all] those leading to the ultimate adjudication of guilt.’ ” (49 Cal.3d at p. 135, italics added.)
The proceedings in this case were manifestly not “totally separate.”
I would reverse the determination that the defendant’s sentence may be enhanced for two prior serious felony convictions under Penal Code section 667.
Appellant’s petition for review by the Supreme Court was denied April 13, 1994. Mosk, J., and Kennard, J., were of the opinion that the petition should be granted.