*1 Dist., Div. A104361. First Three. Apr. 2005.] [No. PEOPLE, and Respondent,
THE Plaintiff GRIFFIN, Defendant and Appellant.
RICHARD
Counsel Such, Appeal, Court by William Richard appointment Defendant and Appellant. Anderson, General, Chief Assistant Attorney
Bill Robert R. Lockyer, Attorney General, General, and Zywicke E. Engler, Attorney Gregg Gerald A. Assistant General, and for Plaintiff Attorneys Respondent. Matthew P. Boyle, Deputy Opinion
CORRIGAN, an additional defendant is convicted felony, When a J. on that the defendant was is authorized if it is further proven sentence 12022.1, crime. Penal Code1 section another at the time of the Under felony is called the which the defendant on bail in connection with while on that bail is denoted offense. The committed primary here, a consecutive Under the factual scenario secondary presented offense. (12022.1 enhancement) must be imposed two-year to run must be ordered consecutively sentence on the 12022.1, (e).) (§ (b), subds. for the offenses.2 given sentence primary offenses alleged to bail primary Defendant Richard Griffin was admitted in California. secondary offenses Arizona. on that bail he committed While conviction, to a subject that he was his the court determined After determination was erroneous He this argues 12022.1 enhancement. is committed when the only 12022.1 applies because that the enhancement applies We conclude California. That fails. argument court, The trial is committed. where regardless references to the Penal Code. unspecified statutory All further are by may presented specific number of be takes into account a variables The statute 12022.1, (f), (d), (See (g).) subds. § differ involved here. factual scenarios that from that
however, ordered the erroneously California sentence to run with concurrently 12022.1, the Arizona term. Such an order (e), violates section subdivision which the sentence on a to run requires secondary offense to the consecutively term for the offense. imposed Because the California sentence could not be legally we reverse the imposed, judgment remand the matter for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND Defendant was with charged three felonies and one misdemeanor. The information also alleged, to section pursuant (c), subdivision that he committed the California offenses while out of on bail for Arizona Defendant charges. demurred to the 12022.1 allegation, arguing enhancement did not when the offenses were not committed in California.
The court overruled the demurrer and defendant to the pleaded guilty substantive At a charges. bench trial on the 12022.1 defendant allegation, that he stipulated was on an Arizona bail when arrested for the California crimes. the court found the Accordingly, enhancement true. At the time of defendant had sentencing, been already a term of five given and six years Here, months in Arizona. the court sentenced defendant to five years and eight months, a including consecutive term for the two-year 12022.1 enhancement. The California sentence was ordered to run concurrently with Arizona imprisonment.
DISCUSSION Section 12022.1 provides, “(a) relevant that: . . . (1) : part, ‘Primary [f] offense’ means a offense for which a has been released from person on bail custody or on his or her own recognizance to the prior judgment final, becoming including disposition any or for which appeal, release on bail on his or her own has been recognizance revoked. ...[][] (2) ‘Secondary offense’ means a felony offense alleged to have been committed while the is person p]Q released from for a custody offense. primary (b) arrested Any person for a secondary offense which was to have alleged committed while that was released from on a person primary shall be subject to enhancement of an additional two penalty years state which prison shall be served consecutive to other term any imposed by “If the convicted (e) Subdivision of section 12022.1 court.” provides: offense, for the is sentenced to state prison of a offense, offense, secondary and is of a for the state prison convicted consecutive to the offense shall be sentence sentence.” cannot
Defendant that felonies committed outside California argues failed to Legislature expressly be considered offenses” because “primary However, 12022.1. nothing language refer to those offenses in section as to exclude By failing the statute limits the section defendant urges. offense, all felonies matter where from the definition of no felonies v. (People “are included within the obviously general provision[].” committed 508, 214]; (1991) P.2d see People Pensinger 9 Cal.2d Biggs [71 1210, The (Pensinger).) 52 Cal.3d 899] not do the statute defendant but it did urges could have drafted Legislature so. used in language analogous
Defendant relies upon refer to the use of convictions prior felony recidivist statutes that expressly 667.5, (d)(2), (f), (See, (a), subd. e.g., from other subds. jurisdictions. §§ 1170.12, Code, & Saf. (b)(2), (e)(4); subd. subd. Health § did not such (c).) employ language He that because urges felonies as foreign did not intend to include clearly in section However, the cited by used statutes language basis for enhancement. rather expresses defendant is not of inclusion but language *5 (See generally on the use of out-of-state convictions. limitation or restriction P.2d 782 Cal.3d 1038-1039 Lang 49 People [264 limitation, to 627], therein.) the “In the absence a reference and cases cited of conviction which was is deemed include any prior convictions’ ‘prior (Ibid.., a under the laws of the convicting jurisdiction. [Citations.]” added.) italics P.3d (2002) Cal.4th 577 59 Cal.Rptr.2d 150]
In v. Walker 29 People the even where the held that section 12022.1 (Walker), applied Court Supreme while released on bail was the defendant committed offense secondary only on the offense a bail condition by failure to as appear required the is distinguishable While question violation of section 1320.5. particular here, section the Court’s approach interpreting from that presented Supreme is instructive. 12022.1 that, when interpret- for Walker the Justice Baxter noted majority,
Writing then we intent, ambiguous, is not language “if the ing statutory legislative said, the and of meaning the plain the meant what Legislature presume 581.) at In upholding ('Walker, supra, Cal.4th p. language governs.” enhancement, “The Baxter stated: language Justice 12022.1 in the event that of 12022.1 no to its provides exception application section of section 1320.5. To offense is a violation only secondary ‘[a]ny that stating terms unqualified section 12022.1 contrary, phrased to have been secondary arrested which was person alleged offense from committed while that was released to a enhancement of an additional in state subject shall be years two penalty suggests . . .’ The these terms meaning strongly . prison plain to secondary felony intended 12022.1 to Legislature 582-583, (Walker, at supra, kind without restriction . . . .” final italics pp. added.) Walker, no that
As in of section 12022.1 sets out language exception its here. Justice reviewing history In prevent legislative application Baxter observed considered defendants Legislature that apparently deserving convicted of both and felonies “as secondary particularly ('Walker,supra, Cal.4th increased for their on-bail recidivism.” punishment 584.) that Certainly nothing history there is indicate p. that bail for felonies come considered those on who foreign into here less deserving commit felonies are secondary their conduct to their increased than felons who confine felonious punishment Walker, own As in here “leads to adopt state. we statutory interpretation the rational result the more offenders receive the greater culpable (Ibid.)3 punishment.” no bar enhancement
There is the sentence applying procedural when the occurs California. The statute allows outside in the information or indictment for prosecutor plead When, (§ (c).) in California. committed here, in the secondary the sentence enhancement is pleaded proved court, court, offense, has the authority “the and only secondary-offense *6 1385, the the or to either strike impose (2003) (People Meloney enhancement as of the defendant’s sentence.” part the 1023].) 70 P.3d If 30 Cal.4th 1162-1163 Cal.Rptr.2d acted, court may stay has not the yet court However, by a to three. this case We are aware that was decided vote four Walker offenses, status a felon on completely substantive unrelated involves different underlying share no elements with the 12022.1 enhancement. bail. Defendant’s crimes common Thus, engaged play. Nothing in Walker particular issue that dissenters is not we analysis in at odds with the conclusion reach here. dissent’s Walker is either the or the imposition execution of the (Ibid.) enhancement. If the secondary-offense enhancement, court stays of the after the acts, primary-offense court the defendant is transferred back physically the secondary-offense court “for a further sentencing to determine hearing (Id. whether to strike or the enhancement.” impose 1162.) at If the p. court secondary-offense execution, the enhancement but imposes its stays court can secondary-offense lift the after stay court has primary-offense (Id. acted. 1164.) Our p. of the reading scheme to include statutory offenses even if committed in another jurisdiction does not render (See statute’s terms Reno v. surplusage. Baird 18 Cal.4th 658 [76 Cal.Rptr.2d 1333].) The failure Legislature’s to address all potential procedural difficulties and various sentencing does not possibilities that support argument 12022.1 should not to defendant. apply
We related reject defendant’s that argument the 12022.1 enhancement violates due process because does not a mechanism for provide determining whether a foreign charge is purposes imposing enhancement. “This claim ignores situations many in which state courts are required full faith interpret give and credit to foreign judgments. Our federal laws, system and the law of comity, conflict of rests on the sound assumption courts of one state are able to interpret the law of sister jurisdictions.” 52 Cal.3d at (Pensinger, supra, 1261.) In p. event, defendant not does claim that the Arizona offenses were not felonies in Arizona or that they not constitute offenses had they committed in California. We likewise reject his argument out-of-state are defendants denied due because are process they likely receive notice at the time of their release on bail that are they subject additional if commit punishment they new felonies in California. Section 12022.1 informs accused felons released on bail of the possible consequences felonies in committing California while on bail.
Defendant contends that as a matter of an accused felon who public policy is released in another state and comes into California and commits a new should be from the 12022.1 enhancement. He exempt argues “California has little interest in punishing ... ‘breach[ing] terms of his custodial . special status’ . . where that status was created in state, another and no interest in even in for an punishing person, part, committed in another state which would not be a felony or even an offense in California.” We disagree.
1119 noted, and for theft identity forgery As defendant was California. All these he theft offenses in in when committed identity Arizona 12022.1 enhancement does felonies The jurisdictions. offenses are in both merely in it increases any way; a defendant for the punish v. Dutton (See (1937) People California offense. for the punishment Further, 505, ‘aimed 218].) primarily’ 12022.1 “is not Cal.2d 506 P.2d 9 [71 such, aas ‘convicted’ does it focus on the offender’s status convictions nor . . of ‘conviction’ for . 12022.1’s requirement person. [Citations.] [S]ection with judicial earlier intended to establish ‘bailed’ offense principally appears were valid. In other to release on bail . . . leading certainty charges words, the ... to an offense declined to has the offender was released unless a court has also sustained on which charge 801, re (In Jovan B. (1993) 814 when he committed it.” 6 Cal.4th [25 673], “If omitted.) fn. the statute was primarily Cal.Rptr.2d ensuring calculated to advance the . . . a defendant’s compliance purpose release, with the conditions or her would have been written likely of his valid for in the absence of a conviction permit imposition punishment v. Watkins 2 (People (1992) the first offense.” 594 Cal.App.4th [3 563].) Cal.Rptr.d
The 12022.1 enhancement and the sentence applies imposed (e).) to the term. The (§ should have run Arizona consecutively court’s was The agree, a concurrent sentence illegal. parties concur, circumstances, we that under must be reversed judgment Baries (People the matter remanded further proceedings. 920].) an condition Because express Cal.App.3d honored, his of defendant’s cannot be he move to withdraw may plea. plea (Ibid.)4
DISPOSITION and the to the court for The is reversed matter is remanded trial judgment with further consistent this opinion. proceedings McGuiness, J.,R concurred. but
POLLAK, majority I concur in the result reached opinion, J. And, view, my to be difficult. the issue more presented consider clarification. the need difficulty highlights reversed, points we the additional raised judgment need not consider Because the supplemental opening brief. *8 Numerous other enhancement and recidivist statutes explicitly provide in they apply felony convictions other if the jurisdictions elements of the Code,1 would (Pen. offense constitute a under felony California law. §§ (a)(1) subd. to a of a [referring convicted “serious in person previously felony or of this state offense committed in any another which includes jurisdiction all of the elements of serious subd. felony”], (d)(2) prior [“A of conviction a shall felony include a conviction another particular in for an jurisdiction offense that includes all of the elements of the particular as (c) defined in of felony (c) subdivision Section 667.5 or subdivision 1192.7”], 667.5, (f) Section subd. of a conviction prior particular felony [“A shall include a conviction in another for an offense which jurisdiction includes law”], all elements of the felony as defined particular 1170.12, (b)(2) subd. conviction of a prior felony shall include particular [“A a conviction in another for an jurisdiction offense includes all of the defined elements particular felony (c) in subdivision of Section 667.5 (c) 1192.7”], 1203, or subdivision (e)(4) Section subd. [referring “[a]ny who has been convicted person twice in this state of a previously or in felony which, state, any other of a if place offense committed in this public would Code, 11370, have been as a Health & punishable felony”]; (c) Saf. § [referring “[a]ny conviction ... of an under the previous laws which, state state, another or of the States United if committed in this 12022.1, however, have been an punishable offense”].) as such Section no contains reference to in comparable occurring offenses other jurisdictions. The majority correctly out that “the used in opinion points language [these] ... statutes is not the of inclusion but rather a language expresses convictions,” or limitation restriction on use of out-of-state and that absence of such limitation reference to felony convictions has prior been held to include a conviction that under the felony is laws of the prior ante, 1116; convicting jurisdiction. see opn., Lang also (Maj. p. People (1989) 49 Cal.3d 627].) 1038-1039 This reasoning logically the conclusion that the reference in supports unqualified (a)(1) subdivision to “a for which has released from on bail” includes which the Nonetheless, defendant was on bail in another jurisdiction. the atypical absence of the effect explicit language provision applies persons on in raises the of whether foreign proceedings enacting question section 12022.1 the was out-of-state bail. If the considering which a defendant was on bail in jurisdiction another did California, constitute a so clear that section 12022.1 could be (c) used to enhance the sentence? and (d) Subdivisions of section 12022.1 both contain the that the statute was not enacted with suggestion indicated, statutory otherwise Penal Unless all references are to the Code. (c), if the in mind. Under subdivision
out-of-state offense are still pending, while conviction occurs proceedings or ... information “shall be allegation pleaded the enhancement *9 (d), if the defendant is subdivision of the offense.” Under indictment primary offense, the to conviction on the offense prior primary sentenced on the of stayed the shall be pending imposition the of enhancement the be lifted court stay by for shall sentence the “[t]he that and shall the time for sentencing the offense at of hearing Legislature recognizes our Certainly recorded in the abstract of judgment.” be to only respect it has to issue such directives with that the authority to that statute issue in California courts. The fact the purports proceedings is the if the statute Legislature that are the of beyond power directives an in other is occurring jurisdictions, to to offenses construed apply bail in other was offenders on Legislature considering indication that the not it section jurisdictions when enacted 12022.1. intent, the legislative of a more restrictive these indications
Despite are my judgment to the refers contrary indications which majority opinion “a does reference to more The statute make unqualified persuasive. Legislature in the history offense.” There is no suggestion than to bail less those sternly intended treat offenders on in other states No reason has new offenses while on bail in California. committing plausible the draw such a distinction. been wish to suggested why Legislature might Thus, that the overlooked likely seems much more Legislature simply on for the persons statute qualifications application potential did section than that the not intend out-of-state offenses Moreover, expansive to such at all. more 12022.1 persons by consistent with the evidenced policy of statute is interpretation public of such enhancement cited above very provisions applying provisions Indeed, this section 668 expresses other occurring jurisdictions. limitation, “all statutes that provide with respect without policy broadly, or an or a based on conviction imprisonment prior for term the enhancement not on term.”2 section 12022.1 bases Although prior prison but status on bail when fact of a conviction offender’s prior offense, 668 and by evidenced section committing the subsequent policy in the context. is provisions applicable present the other enhancement equally state, government, any other “Every who been convicted in Section 668 reads: has state, which, person could country, jurisdiction an for committed within this that or if prison, by in the state is punished imprisonment the laws of this state have by prescribed in the any subsequent for crime committed within this state manner punishable in a this state. The place had court of prior and to the extent if that conviction taken law same includes, to, an provide but all statutes that for of this section limited application prison or term.” prior prior a term of based on a conviction imprisonment enhancement or 12022.1,1 I Although court’s join interpretation urge be consideration given statute to amending eliminate potential In this case uncertainty. defendant’s primary offense is a unquestionably so, under the laws both states. When is not will uncertainty assume greater significance.
A petition was denied rehearing May and appellant’s for review petition by Court was Supreme denied 2005. August J., did not Werdegar, therein. participate