*1 Oct. F012660. Fifth Dist. 1990.] [No. PEOPLE, Plaintiff and Respondent,
THE VEGA, and Appellant. Defendant WALTER WILFREDO publication.*] [Opinion partial certified * Court, publication opinion certified for Pursuant Rules of rule this California exception part
with the III. *3 Counsel Defendant by the Court of Appeal,
Neil M. under Herring, appointment and Appellant. General, Chief Attorney Iglehart, Richard B.
John K. Van de Kamp, General, Attorney Attorney Harley Mayfield, D. Assistant Assistant Pena, General, Cutler, Deputy Maxine Yvonne H. Behart and Rosendo General, Attorneys for Plaintiff and Respondent.
Opinion
REID, J.*
Introduction Defendant Walter Wilfredo was convicted verdicts of Vega jury two counts of violation of Penal Code section 666 theft a theft- (petty prior with conviction, related I and II) counts and one count of violation of Penal addition, Code section 459 of the In (burglary degree, III). second count the jury found true that defendant had allegations served two previously separate prior terms within the of section subdivision prison meaning (b), and had committed the subject burglary custody while released from trial on the (§ theft As a of these pending charges 12022.1). consequence verdicts and findings, years defendant was sentenced to a total of seven and in four months state prison. directly
Defendant does not challenge jury’s verdicts or but findings, does assert on this that a appeal variety sentencing errors resulted his an excessive receiving reject and unconstitutional sentence. We all of de- fendant’s contentions with the of the one contention contained exception of this portion opinion is not published.
Statement the Case 20, 1985, On June an information was filed defendant. He was against 666, charged two counts with a violating prior theft with petty theft-related conviction. The the section 666 prior underlying conviction * judge sitting superior assignment Chairperson Retired court under Judicial Council. 1All future code references are to the Penal Code unless otherwise noted. to the 31, 1979, In addition burglary. conviction for May a counts was term prison had served prior that defendant alleged it was charges, above conviction (b). of section meaning within the in possession felon being a convicted this enhancement was underlying 29, 1982. 12021, November occurring on (§ (a)) subd. of a firearm 1985, confirmation. for trial appear defendant failed to On August issued. Defendant and a bench warrant was revoked His honor release was 3, 1989, at Sears. burglary in a for his involvement was on March arrested was filed. and amended information consolidated On June first information, 20, 1985, June in the charges In addition to the contained An 459). Sears burglary (§ III in count with charged defendant was while III that the occurred burglary as to count alleged enhancement was In (§ 12022.1). and II custody on counts I defendant was released from information, a in the June 1985 alleged term prison addition to the prior May for the alleged (§ (b)) term enhancement subd. prior prison 31, 1979, as alleged the same conviction conviction. This was burglary I II. in counts and charges of the section part trial, all of as guilty charged, defendant was found jury Following 16, 1989, defendant to be true. On August the enhancements were found *5 years of two for the midterm imposed The court prison. was sentenced II and III were to the for counts I. The court ordered that sentences count term for each was I. The additional consecutive consecutively run to count months, years. two-year A full consecu- the midterm of two one-third eight addition, In two 12022.1 enhancement. term added for the section tive was 667.5, (b) section subdivision terms were added for the 1-year consecutive enhancements, months. years a total of seven four term for prison Statement of Facts briefly can be summarized. facts are not in issue and salient 12, 1984, in K mart two putting pairs defendant was seen On August store without paying He left the purse. into his female pants companion’s (count I). for the items 9, 1984, Macy’s, a counter at defendant went behind
On November without into it. He left the store and stuffed belts shopping bag, removed (count II). for the belts paying 3, 1989, shirts concealing seen defendant in Sears and was
On March baby the and carriage He left the store with baby carriage. and in a pants (count III). carriage for the items without paying
511
Discussion
I. His Prior Burglary Was Not Punished Twice Defendant Violation Section 654 Defendant that the term enhancement im contends prior prison under section was im posed (b) burglary subdivision because proper underlying this was same conviction charges escalating thefts to felonies. petty There is a authority in the Courts of on the split Appeal question whether a single conviction and of incarceration for the conviction period may be used both to theft from a misdemeanor to a upgrade petty under and to enhance the sentence under section subdivi- sion (b). who,
Section provides: “Every having been convicted of person petit theft, theft, Code, grand theft auto under Section 10851 of the Vehicle burglary, robbery, or violation of having Section 496 served term therefor in any institution or been penal having therein as imprisoned offense, a condition of for that probation convicted of subsequently petit theft, then the convicted of that offense is subsequent punishable imprisonment county jail not year, one or in the state exceeding prison.”
Section (b) one-year that a requires consecutive en- hancement be given for each prior separate term served prison *6 any defendant for felony.
In v. People Ancira 164 (1985) 378 the Cal.App.3d 527], Cal.Rptr. [210 Five, First District Court of Appeal, Division held that it was impermissible an enhancement the impose conviction that was also prior burglary the basis of the section 666 authority violation. The sole for the conclusion reached in Ancira was the California Court case of Supreme People 411, Edwards 18 Cal.3d (1976) 557 P.2d [135 995]. In Edwards the by defendant was convicted of of a firearm a possession 12021, convicted felon. (§ (a).) two-year subd. The trial court added a enhancement for a (former 3024). conviction The same con- prior § viction was utilized for both Court in Edwards found charges. this to be invalid. the dual conviction for pur
“The court’s reliance on defendant’s element of the an essential pose augmenting providing of sentence offense, however, that when a the rule runs afoul of established charged of criminal conduct which other conviction constitutes an element noncriminal, not be may the minimum sentence increased wise would be Here, of proof of the conviction. indispensable prior because [Citations.] an may only be used to establish element marijuana defendant’s conviction of the sentence of a violation of section 12021 and not to increase the term Edwards, 796, 800.) 3024.” 18 Cal.3d supra, under section in v. Bruno Appeal The Third District Court of why the above persuasively explains Cal.Rptr. 31] the issue. longer from Edwards is no on language controlling the Determinate Sentenc- predates “Edwards enactment Uniform 1139, 1, 1976, in 1977) which July Act Stats. ch. ing (added operative 1170, included. of section as enact- (b) originally section 1170 is Subdivision ed, in relevant ‘When a is entered part: judgment imprisonment provided the the three terms of possible imprison- the court shall order middle of ment, aggravation mitigation unless there are circumstances or . . . . In case an term impose upon finding crime no shall the court upper 667.5, 1170.1a, used to enhance the sentence under Section any fact 12022.5, 12022.6, 12022, any In no fact be or 12022.7. event shall used determine, enhance a The last aggravate, quoted twice to or sentence.’ holding as codified the (b) originally sentence of subdivision enacted Edwards, relied Ancira. upon date, July
“Prior to its Uniform Determinate Sen operative changes Act was amended. In addition to some minor tencing making entirety amendment in its (b) of section deleted sentence, determine, aggravate, ‘In no event shall fact be used any twice to history or a sentence.’ The sources of we have legislative enhance few no on of the amendment deleted the light why proponents located shed ‘determine, aggravate, twice the same fact to or prohibition against using It this prohibi enhance a sentence.’ is nevertheless clear the deletion of absolutely tion a construction of section which would precludes existing if it had eliminated again just include the as not been prohibition neither Edwards nor its An Legislature. Consequently, progeny, [Citation.] *7 cira, 667.5 authority an enhancement under section based prohibiting convic upon underlying the same conviction as constitutes the tion for a section 666 Here the sentence car charge. properly pronounced a greater ried out the sections 666 and policies imposing both punishment punishment on a thief of his recidivism and additional because criminality.” on failed to future a felon whose term deter prior prison
513 Bruno, 1106-1107, omitted.) fns. Cal.App.3d v. 191 supra, 666 and 667.5 are discrete. illustrates that sections convincingly Bruno also 666 established within section status as a recidivist “Defendant’s theft and he committed alleged petit which charge his guilty plea . . . he ‘served a term burglary for which had been convicted previously The for said offense.’ probation in a . . . as a condition institution penal incarceration was an resulting probationary conviction prior burglary term served’ for The charge. ‘prior separate prison essential element of that the court ‘shall a one- impose was a discrete incident for which burglary dual use of facts in the year term.’ There was no prohibited [Citations.] Bruno, 1102, 1105.) v. 191 sentencing supra, Cal.App.3d calculus.” (People v. Bruno in Levell People The Sixth District Court of followed Appeal 201 749 (1988) Cal.App.3d Cal.Rptr. [247 489]. Six, followed Bruno in Second District Court of Division Appeal, v. and Rodriguez 633], 206 517
People (1988) Cal.App.3d Cal.Rptr. [253 additionally 6542 facts. Since found that section to acts not applies (the offender) sections 666 and 667.5 to facts status of the recidivist apply conduct, and not to 654 section does not dual preclude punishment. (People Rodriguez, analysis v. 667 519.) (For regarding similar supra, p. and section v. Melchor People see Cal.App.3d 174].) 1487-1490 Bruno,
In our 1102 contains opinion People supra, Cal.App.3d more analysis and better than the earlier case of developed reasoning Ancira, 378. find supra, Accordingly, we no violation section 654 in the burglary use of defendant’s conviction as a basis for escalating enhancing his thefts from misdemeanors to felonies and in petty his sentence under (b).
II. The Enhancement Under Section 12022.1 Did Violate the Not Against
Prohibition Ex Post Facto Laws forth, As after counts I and II in the previously being charged set with information, his On original recognizance. defendant was released on own 15, 1985, confirmation and a bench August he failed to for his trial appear provides part, punishable made pertinent Section 654 that “An act or omission which is ways by may provisions punished in different be under either of such different of this code one;. provisions, . .” punished but in can it be under more than no case *8 on He until March 1989. Based this issued. was not arrested warrant was arrest, to to section 12022.1 was added an enhancement pursuant new new count. warrant, provid- 12022.1 time of the issuance of the bench section
At the a which felony ed convicted of offense was part: “Any in pertinent person his custody released from on bail or on or person while that committed shall, felony upon trial on an earlier offense recognizance pending her own offense, subject the later be enhancement penalty conviction of to effective late substantially 12022.1 was amended and became Section Pertinent to after the arrest warrant was issued defendant. this “ offense’ means ‘Primary is subdivision which now (a)(1), provides: appeal custody on for which has been from bail felony offense released final, becoming or her to the judgment on his or own recognizance or his any or which release on bail or including disposition appeal, her has recognizance (Italics added.) own been revoked.” 12022.1 written when his Defendant contends that section as it was revoked section. He applicable argues applica honor release was is the against tion new section violate the prohibition would constitutional asserts, follows, not ex laws. It defendant that because he was on facto post 3, 1989, occurred, his the section recognizance own when the March offense him. to 12022.1 enhancement not applicable First, in v. Rodri- argument Defendant’s must fail for two reasons. gue argued the defendant Cal.App.3d 828 [232 187] him had 12022.1 his bail been apply that former section did not because appellate revoked on the when the new occurred. pending case rejected argument. court this deter,
“The of former 12022.1 ‘is to section those purpose punishing, committing or persons recognizance released on bail on their own from new on awaiting judgment felony charge.’ felonies while trial court [Cita- statutory to see be furthered by It is difficult how this would purpose tions.] agreements of a distinction between those who honor their bail adoption Not fugitives. only if the distinction rewards the fugitives, particularly felonies, encourage it deter the of new it would bail would not commission argument legislative is inconsistent intent Appellant’s with jumping. rejected.” (187 pp. 832-833.) and is of the new 12022.1 would not More importantly, application be ex Article post a violation of the facto laws. prohibition against
515
10
United States
and article
the California Constitution
9 of
ex
facto laws.
prohibit
post
Constitution
68],
L.Ed.
46 S.Ct.
the
In Beazell Ohio [70 set forth the to principles applicable United States Court facto laws. against ex prohibition post settled, Court so well known that their citation by
“It is decisions of this with, a crime an act any that statute which as may punishes be dispensed committed, done; innocent which makes more which was when previously crime, commission, for a after its or which burdensome the punishment available to law any according one with crime of defense deprives charged committed, as ex The at the time when the act was is prohibited post facto. of it rest judicial constitutional and prohibition interpretation upon form, laws, to make innocent acts notion whatever their which purport offense, event, are and aggravate criminal after the or to an harsh oppres- sive, act, and that an either by legal the criminal attributable to quality definition of the offense the nature of the punishment or or amount commission, enactment, for its should not be altered imposed legislative Ohio, fact, after the disadvantage (Beazell accused.” supra, U.S. 269 169-170 L.Ed. at pp. pp. 217-218].) [70 Sears, The act of which of section burglarizing triggered application here, 12022.1 to defendant occurred after the effective date of the new long “The legislative statute. intent of section 12022.1 was to recidivists punish with additional . . . increased are due to penalties. penalties [defend- status as a an repeat arise as incident of the subsequent ant’s] offender offense.” v. Warinner 1356 not, contends, The act here that a bench Cal.Rptr. 197].) as defendant warrant issued for him in revoking recogni- his release on his own zance. The act was a new while released. committing analysis
This analysis is similar to the found in cases enhance- involving ments for prior convictions when new is found and the prior conviction occurred to the effective date of the enhancement statute.
“ offenses are attributable to the penalties subsequent ‘[I]ncreased defendant’s status as a offender and arise as an incident of the subse- repeat . . . .’ quent constituting offense rather than for the offense penalty For this are not ex imposing penalties post reason statutes such [Citation.] facto laws. [Citation.] offense,
“At the time committed his appellant post-Proposition 667 was in full him of the conse- possible force and effect and apprised 667 enhancements behavior. of section Application of his antisocial quences of ex facto any categories post does not fall into of the four to these offenses *10 done; (b) when make make criminal an action innocent (a) laws: it does not done; already (c) greater punish- act criminal when inflict more serious an committed; (d) at the time it was or permit ment than the act attending when the act required defendant to be convicted with less evidence than was was done. [Citation.] “ merely because it draws upon ‘A statute is not retroactive operation ” (People
facts antecedent to its enactment for its operation. [Citation.]’ 419].) 124-125 Cal.Rptr. Weaver (1984) [207 12022.1 applied. The section enhancement was properly
III. Sentence The Court’s Failure to State Reasons the Consecutive II Be Resentenced* on Count That Requires Defendant
IV. There Was Violation the Double-the-base-term Limitation No 1170.1, (g) Section Subdivision 1170.1, imprisonment Section “The term of (g) provides: trial court as the years shall not exceed twice the number of imposed the defendant (b) base term to subdivision of Section unless pursuant Section felony’ (c) stands convicted of a ‘violent as defined in subdivision to subdivision being or a consecutive sentence is imposed pursuant section, Section (b) (c) or of this or an enhancement is imposed pursuant 12022.55, 12022.6, 667, 667.8, 667.85, 12022, 12022.2, 12022.4, 12022.5, 12022.7, 12022.75, or or an enhancement is being imposed pursu- Code, 11370.2, 11370.4, Safety ant to Section or 11379.8 of the Health and or the defendant stands convicted of from an institution escape lawfully which he or she is confined.”
In his brief defendant that his sentence violated opening argued double-the-base-term limitation.
* footnote, ante, page See 506. filing to the of defendant’s brief filing opening
After brief, held that the double-the- the California Court respondent’s 667.5, subdivision en- (b) to section apply base-term limitation does not v. Prather 50 Cal.3d hancements.
787 P.2d 1012].) cites Prather the section sub- regarding
Respondent appropriately 12022.1 division enhancements. then that section (b) Respondent argues are the double-the-base-term limitation. enhancements also from exempt that the clear of section 12022.1 illustrates Respondent language contends *11 that these enhancements were meant to be exempt. brief,
In argument his defendant concedes the as to the section reply 667.5, Defendant, however, subdivision enhancements. that (b) argues Prather has no 12022.1 enhance- bearing regarding on the section question ments. Defendant of disagrees language with assertion that the respondent’s 12022.1 section mandates its exclusion from the double-the-base-term limi- 1170.1, tation of section (g). subdivision I, 28,
Article section subdivision (f) of the California Constitution was added initiative 8—the Bill (Prop. Rights) by Victim’s of the California voters June of 1982. (f) “Any Subdivision that provides pertinent part felony any any conviction of criminal . . . shall proceeding subsequently be used without limitation . . . for enhancement purposes any of sentence in criminal proceeding.” Prather,
In
v.
The Prather court to an and declined ambiguity without was not California Constitution ” (Prather, supra, limitation.’ of ‘without a “definitive interpretation nounce that a features did discuss “the essential The court 437-438.) 50 Cal.3d 438.) (Id. address.” at p. these terms should construction’ of ‘common-sense article although that defendant’s contention Finally, rejected the court of section application Constitution bars section 28 of the California convictions, it does on prior enhancements based (g) enhancements limitation to double-the-base-term not bar application felony convic the term “prior The court found that terms. prior prison lines that will general broad liberally and on tions” should be interpreted is “to provide here purpose of the provision. accomplish purpose recidivist offenders.” imprisonment increased terms of Prather, 428, 439-440.) 50 Cal.3d supra, felony for any ‘where the new offense
“Section 667.5(b) provides *12 any to and consecutive in addition which a sentence is prison imposed, therefor, for each one-year a term court shall impose terms the other prison We added.) think any felony.’ (Italics term served prison prior separate felony underlying the aimed 667.5(b) primarily that section is it clear felony’s serious conviction, an indicium of the secondarily, and as only is, fairly ness, 667.5(b), That we believe section at the term. prior prison read, for that particular sentence enhancement merely a provides special enough that were deemed serious felony convictions’ subset of ‘prior (See, e.g., People actual imprisonment. courts to warrant sentencing earlier (as term 713 ... prior prison Hurley (1983) [‘a a who commits enhances the sentence of 667.5) person defined in [a § v. Gaines (1980) to warrant felony] enough imprisonment’]; serious itself to that class 515 . . . 667.5 addresses 112 Cal.App.3d [section we hold Accordingly, have warranted imprisonment’].) felonies which prior concerning (f), mandate of article broad neces enhancement felony purposes, convictions’ for ‘any the use of based on the lesser of enhancements sarily category includes Prather, su imposed.” for which imprisonment convictions 428, 440, in original.) 3d brackets Cal. pra, in Prather answers the analysis just quoted It that the opinion is our here. question presented 12022.1
Section provides: only: this section For the “(a) purposes “(1) ‘Primary offense’ means a offense for which has been person custody released from on bail or on his or her own recognizance prior to final, judgment becoming including any or for disposition appeal, which release her on bail or his or own has been revoked. recognizance
“(2) ‘Secondary offense’ means a felony offense to have been alleged committed while the is person custody released from for a primary offense.
“(b) Any person secondary arrested for a offense which was alleged have been committed while that was released from custody on primary offense shall be to a subject enhancement of an penalty additional years two in state which shall prison be served any consecutive to other term by the imposed court.
“(c) enhancement allegation provided in subdivision (b) shall be pleaded the information or indictment which alleges secondary offense and shall be as proved provided by law. The enhancement allegation may be pleaded but need not be complaint at the proved preliminary hearing secondary offense.
“(d) Whenever there is a conviction for the secondary offense and the enhancement and the proved, person is sentenced on secondary offense prior offense, to the conviction of the primary imposition enhancement shall be stayed pending imposition the sentence for the primary stay offense. The shall be lifted by the court hearing the primary *13 offense at the time of for sentencing that offense and shall be recorded abstract of judgment. If the person is acquitted of the primary offense the stay shall be permanent. If the
“(e) person offense, is convicted a felony for primary is offense, sentenced to state for the prison primary and is convicted of a felony offense, for the secondary any state sentence prison for the secondary offense shall be consecutive to the primary sentence.
“(f) If the is person offense, convicted of a felony for the primary is granted offense, probation for the primary and is felony convicted of a for offense, the secondary any state prison sentence for the secondary offense shall be enhanced as provided (b). subdivision If
“(g) the primary offense conviction is reversed on the enhance- appeal, ment shall be retrial suspended pending felony. of that retrial and Upon reconviction, longer If is no shall reimposed. the enhancement be of the custody secondary primary for the offense reconviction upon discretion, offense, the enhancement and may, the court at its reimpose to custody.” him or her recommitted order 567, 679 P.2d
In v. Tassell Cal.3d (1984) of en- 1170.1 refers kinds stated: “Section to two 1], Court those offender; (2) to and go those which the nature hancements: the offense. Enhancements convictions— prior which to nature of go the first sort 667.6 and 12022.1—are of authorized sections an section 12022.1 as providing The characterization of Supreme Court’s Al- more than dictum. something convictions is enhancement prior felony there is a convic- 12022.1 comes into before though play tion, final no and unless the offense is a primary it has life until Furthermore, recidi- purpose punish conviction. of section Warinner, supra, vists with additional penalties article subdivi- with the behind 1356), comports purpose Thus, a section 12022.1 enhancement of the California Constitution. (f) sion conviction, term is as that is an enhancement based on construed, subject and to the double-the-base- broadly liberally and is not (g). limitation term of section we do not analysis question, Because the above dispositive 12022.1 as meaning argued the issue in terms of the of section plain address by defendant respondent.
Disposition to the trial for resentenc- judgment is reversed and remanded court In other III of this all in accordance with the ing provisions part opinion. *14 the is affirmed. judgment respects
Martin, J., Acting P. concurred. II, I, in and III ARDAIZ, J., I concur Dissenting. parts and Concurring con from the reasoning I dissent majority opinion. respectfully of the IV, i.e., that a Penal section 12022.11“on bail” en elusion of Code part hancement double-the-base- exempt (g)’s is from section term limitation.
Preliminarily, clearly a brief review of section subdivision (g) reveals that Legislature the did not “on bail” enhance- explicitly exempt ments major- from of the double-the-base-term limitation.2the operation The majority solely theory conclusion of the rests that the upon provi- I, of sions California Constitution article section subdivision (f) (hereaf- I, ter any article section 28(f)) statutory restriction for supersede felony is, convictions and that the “on bail” enhancement of section 12022.1 essence, felony conviction” enhancement “prior analysis of purposes of the applicability of the double-the-base-term limitation. Consequently, only this is the I argument need consider. of gist majority’s argument is that since the conviction and of
imposition sentence for the “primary (§ 12022.1) offense” must take place to the “prior” implementation of punishment for the “on bail” en- hancement, the enhancement is a form of felony conviction.” In “prior of support this argument, majority relies our upon Court’s Supreme recent decision in v. Prather People Cal.3d 428 stated, 787 P.2d For reasons to be the premise is incorrect. 1012]. I,
Enacted in 1982 as part article Proposition section 28(f), provides: “Any any conviction of any criminal proceeding, whether adult or juvenile, shall be used without limitation for purposes impeachment or enhancement of sentence in any criminal proceeding. When offense, a prior conviction is an element any felony it shall Prather, be to the trier proven of fact court.” In open supra, 428, 440, I, Cal. 3d our Court held that article 28(f) section bars application double-the-base-term limitation to section subdivi sion (b) term” “prior prison enhancements.
The court rejected the that a argument term enhancement prior prison not based on a prior felony conviction within of article meaning section 28(f). This “hypertechnical 8 . . . reading Proposition ignores underlying purposes of both that provision 667.5(b), namely, and section statutory All references are to the Penal Code unless otherwise indicated. 2While Legislature’s another court specifically exempt has concluded the failure to 12022.1 from the drafting double-the-base-term limitation of 1170.1 was not over sight (People Weatheroy (Cal.App.), majority opinion does not address this issue. *15 522 felony offenders. of for recidivist increased terms
provide imprisonment Prather, 439-440.) 50 at The court pp. v. Cal.3d (People supra, [Citations.]” at the is aimed 667.5(b) primarily reasoned: “We think it clear that section conviction, an indicium of felony only secondarily, and as underlying is, seriousness, That believe section the at the term. we felony’s prior prison read, enhancement for merely a sentence 667.5(b), fairly provides special that were deemed serious felony that subset of convictions’ particular ‘prior .... to warrant actual enough by sentencing imprisonment earlier courts 28, the of article subdi we hold that broad mandate Accordingly, for enhance ‘any felony vision the use of convictions’ (f), concerning prior enhancements necessarily category ment includes the lesser of purposes, was felony imprisonment imposed.” based on convictions for which prior 440, (Id. original.) at italics in p. 293], Cal.Rptr.
In v. Shivers 181 847 we (1986) Cal.App.3d People [226 of (b) held subdivision did not authorize an enhancement that section the the term” was a crime committed after prison sentence where for “prior being Noting crime which the defendant was sentenced. presently the of enhancement for convictions was to deter legislative purpose recidivism, not deterring we found that recidivism would purpose “[t]he yet a by be effectuated offense an offense not committed.” enhancing present (I d., 850.) at p. Rojas Cal.Rptr. 786],
In v. 206 795 People (1988) Cal.App.3d [253 667, (a), court a similar result in subdivision construing reached five-year itself a 8. That enhancement Proposition provides statute part felony been “any convicted a serious who has person previously “that, felony.” subject The court held be to the convicted of serious five-year (a), to section defend enhancement pursuant felony ant’s serious conviction must have occurred before commis (Id., Relying sion of at on present p. 802.) part People offense.” Shivers, here, “Similarly the court reasoned: supra, Cal.App.3d recidivism would not be furthered en purpose deterring imposing of a previously hanced on a who not convicted punishment serious offense.” present before commission Rojas, 801.) supra, p.
Rojas on v. Balderas Cal.3d also relied held: find 480], 711 P.2d our Court “We where de- merit in contention that ‘prior defendant’s conviction[s]’ limited to those entered scribed in subdivision of section 190.3 are (c) before consistently so California courts have commission of crime. capital
523 on the basis of statutes which call for harsher treatment interpreted penal such that convictions.’ The rationale of laws is ‘prior presumed [Citations.] an brushes with the law deserves more offender undeterred his prior (Id. treatment. at in Or original.) severe criminal italics p. [Citation.]” in “it can into Rojas, ‘relapse’ as stated is difficult to envision how one meaning criminal behavior within the of an habitual criminal statute before one’s criminal prior adjudicated punish- conduct has been as and resulted 799.) ment.” 206 Rojas, supra, Cal.App.3d p. clear,
As these authorities make of an enhance- distinguishing feature ment a greater based on conviction is the defendant receives punishment for a new offense after his conviction of the earlier committing offense. The bail” authorized 12022.1 “on enhancement operates in an entirely different manner. The defendant receives greater punishment offense,” not felony, “secondary because his new his followed conviction Rather, of an felony, earlier offense.” he receives “primary greater punishment because his new felony custody followed his release on the from earlier crime. While the of ultimate conviction on the is primary offense fact enhancement, to precondition two-year of the imposition timing of the addresses, entirely conviction is irrelevant. Section 12022.1 inter expressly alia, the situation where conviction and sentencing secondary on the offense precede conviction on the offense. primary (§ subd.(2)(d).)
The elements the “on bail” enhancement are that the custody released from on a offense and committed a primary secondary offense liberty. while at A conviction for the is not an primary offense element of “on bail” enhancement. While a conviction sen- i.e., tence must occur precede, to” actual “prior “on bail” imposition enhancement this fact does not mean the penalty, enhancement is based on Rather, a prior felony conviction. for imposition of the en- punishment hancement requires felony conviction and sentence imposition of for the primary offense. While the conviction and imposition of for the punishment primary must take offense to the place “prior” punishment imposition enhancement, this condition does not precedent punishment render the enhancement a prior felony conviction.3 A petition review filed A true does not finding that the defendant suffered a require has The majority conviction. the word uses literal sense “prior” blind to its conventional use.
The majority’s reliance on v. Warinner People is “The Warinner states: misplaced. legislative 197] Weatheroy petition same conclusion was reached in A (Cal.App.). for re 5, 1990, view September Weatheroy pending. filed *17 penalties. with additional intent 12022.1 was to recidivists punish of section as a to status repeat The here are due Warinner’s penalties increased (Id., offense. arise an incident of the subsequent and as [Citation.]” offender also seeks to 28(f), at italics While article section p. original.) in recidivism, 12022. “on bail” en not that l’s it does follow punish The deal with two felony convictions. statutes hancement is based on prior who com 12022.1 a punishes different of recidivists. Section types felony an earlier which felony custody mits a released from on new while convicted; felony convictions ultimately prior he is enhancements based on after conviction of earlier only commit new crimes punish who persons felonies. v. 36 (1984) Tassell upon language People
The also relies majority P.2d Court 1], 679 wherein our Cal.3d 90 [201 category cited 12022.1 as an enhancements example to section the or status of listed in section 1170.1 that to nature “prior go convictions” offender, go class of which to the the as to another enhancements opposed an the This in the context of opinion nature of offense.4 discussion was wit, offender, the that that to nature the to holding priors go priors the 667.5, in Tassell under subdivision and proven (b) and sections pleaded do not to a count and therefore can (a), particular attach only majority’s of an term. The component aggregate be used once as a something 12022.1 more statement that this characterization of section “is than dictum” is The reference to section persuasive. passing not context, taken in of a of enhancements which category was illustrative the the Tassell did not discuss to nature of offender. plainly go specific that, whether, to did enhancements imposed pursuant nor it hold 12022.1 are on convictions. enhancements based sum, In the the bail” enhancement based majority’s “on premise an unsupportable on on “prior unprecedented, convictions” rests of long-accepted usage. of this term of art that flies the face interpretation judicially uses that have been statute terms language “[W]here construed, exists that the terms have been used in strong presumption have them. This also placed principle manner which courts precise upon (1) go to the nature of 4“Section 1170.1 refers to two of enhancements: those which kinds offender; go con and to nature of the offense. Enhancements those which by 667.6 and 12022.1—are of the first sort. second victions—authorized sections typified kind which from the circumstances of the crime—are of enhancements—those arise by great bodily injury En 12022.5 12022.7: was firearm used or was inflicted? sections kind, contrast, counts; kind several those of the first hancements of second enhance the but, offender, they related are add nothing particular have to do counts since are to the with Tassell, supra, 36 only step arriving aggregate at v. ed as a sentence.” once 90.) p. Cal.3d at initiative, applies legislation added . . (People Rojas, supra, Indeed, 799.) p. the materials placed before the voters when they enacted Proposition referred to convictions that existed in the past, Prather, before the new criminal conduct occurred. (See supra, reasons, Cal.3d at 436.) For p. these I dissent.
Appellant’s petition for review by the Supreme Court was January denied 4, 1991.