Filed
7/3/13 P. v. Payne CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
RICHARD MURRAY PAYNE,
Defendant and
Appellant.
F063494
& F063901
(Kern
Super. Ct. Nos. BF132416A, BF134130A, BF134601A & BF135828A)
APPEAL from
a judgment of the Superior Court of
and John R. Brownlee, Judge.
name="_ftnref1" title="">*
Sylvia
Whatley Beckham, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Charles A. French and Tia M.
Coronado, Deputy Attorneys General for Plaintiff and Respondent.
-ooOoo-
Appellant/defendant
Richard Murray Payne has a lengthy criminal record. The instant appeal concerns his activities
from 2008 to 2011, which began when he was arrested for committing
and failed to appear as ordered on April 26, 2010. A bench warrant was issued for his arrest,
and he was returned to custody on or about May 26, 2010. Defendant was again released on bail on
August 31, 2010, but he failed to appear on October 15, 2010, and a bench
warrant was again issued for his arrest.
Defendant was finally returned to custody when he was arrested on
February 28, 2011, for committing additional drug offenses, and he remained in
custody for the rest of the criminal
proceedings.
Defendant was charged in four
separate felony cases with committing the 2008 drug offenses, failing to appear
on April 26, 2010, failing to appear on October 15, 2010, and committing the
2011 drug offenses. Defendant entered
into a plea agreement in the 2011 drug case, and he was convicted in the three
other cases after jury trials. He was
sentenced to an aggregate term of 14 years 8 months in prison.
The instant
case consolidates the four appeals which defendant has filed in the four
separate cases. All his appellate
contentions, however, are only concerned with his conviction after a jury trial
in Superior Court of Kern County case No. BF132416A,
2010, in case No. TF005315A, with an on-bail enhancement (§ 12022.1). Defendant contends the court should have
granted his motion for acquittal of the on-bail enhancement (§ 1118.1)
because the prosecution failed to prove that defendant was arrested on the
bench warrant that was issued on April 26, 2010, within the meaning of section
12022.1. Defendant also contends the
jury was not instructed on every element of the on-bail enhancement, in
violation of Apprendi v. New Jersey
(2000) 530 U.S. 466 (Apprendi). Finally, defendant argues the two-year term
imposed for the on-bail enhancement must be stayed because there is no evidence
that defendant was convicted of the underlying offense in case No. TF005315A.
The Attorney General concedes the
on-bail enhancement must be stayed and the case remanded for further
proceedings. We will issue the stay, and
otherwise affirm defendant’s convictions and the on-bail enhancement. (§ 12022.1.)
While defendant is only challenging
his conviction in case No. BF132416A, for failing to appear on April 26, 2010,
we must review the entire interrelated procedural history of these four cases.
The 2008 drug and firearm case
On the
morning of April 11, 2008, officers searched a residence in Bakersfield. Defendant, his wife, their daughter, and
another man were present. The officers
found 215 grams of methamphetamine inside a fake hairspray can, and a digital
scale. The drugs and scale were inside
in a pink purse recovered from a bedroom closet. A can of cutting agent was in the
bathroom. The officers also found a
.22-caliber rifle in the garage. A
police scanner was in the house, and it was tuned to the radio traffic from the
Bakersfield Police Department. A camera
was mounted on the roof, over the front door, and it was linked to a video
monitor in the bedroom. Pay-owe ledgers
were found in the garbage can.
Defendant was advised of the
warnings pursuant to Miranda v. Arizona
(1966) 384 U.S. 436 (Miranda), and
initially denied any knowledge of drugs.
After further questioning, defendant admitted the methamphetamine
belonged to him, and explained in detail about how the drugs were hidden in the
hairspray can and the pink purse.
Defendant said he put the purse in his daughter’s bedroom closet because
she was not on probation or parole, and he thought the police would not search
in that room. Defendant said someone
else left the rifle in the garage, and he was facilitating an exchange between
two people.
Case No. TF005315A
In case No.
TF005315A, defendant was charged with a felony offense. The parties agree that it is unclear from the
instant appellate record as to the precise felony offense(s) that defendant was
charged with. The record implies that he
was likely charged with possession of methamphetamine for sale (Health &
Saf. Code, § 11378) but does not include a complaint or information from
case No. TF005315A.
The parties also agree that on
April 16, 2010, defendant was released on a bail bond and ordered to return on
April 26, 2010, for a jury trial in case No. TF005315A.
On April 26, 2010, defendant failed
to appear for the jury trial as ordered in case No. TF005315A, and the court
issued a bench warrant for his arrest.
On May 26, 2010, defendant was
arrested and returned to custody.
name="_ftnref4" title="">[3]
On May 28, 2010, defendant appeared
in court for the first time in case No. TF005315A since the bench warrant
had been issued. Defendant was in
custody.
Case No. BF132416A – Failure to appear on 4/26/10
On June 30,
2010, an information was filed in case No. BF132416A, which charged defendant
with count I, failure to appear on April 26, 2010, after he was released on
bail and ordered to return in case No. TF005315A.
The information further alleged an
on-bail enhancement, that defendant had been released on bail in case No.
TF005315A when he committed the offense charged in count I; and six prior
prison term enhancements (§ 667.5, subd. (b)).
On July 9,
2010, defendant pleaded not guilty, and bail was set at $65,000. Defendant remained in custody.
Case Nos. TF005315A/BF123010A
Also on July 9, 2010, the felony
charge in case No. TF005315A was consolidated with case No. BF123010A. The instant record does not contain a
complaint or information for the consolidated case.
On July 26, 2010, the felony
charge(s) in case No. BF123010A were dismissed.
Case No. BF132416A – Released on bail
On July 28, 2010, defendant was
still in custody in case No. BF132416A, for his failure to appear on April 26,
2010. Defendant filed a motion for
either reduction of bail or release on his own recognizance (OR).
On or about
August 2, 2010, defendant posted bond of $65,000 and was released on bail. Defendant posted bond before the court
addressed his motion.
On August
6, 2010, the court denied defendant’s motion for OR release or to reduce
bail. Defendant remained on bail.
On August
20, 2010, defendant appeared in court and rejected a plea bargain. He remained on bail.
On August
31, 2010, defendant appeared in court, and the court ordered him to return for
the readiness hearing on October 15, 2010.
Defendant remained on bail.
Case No. BF134130A – 2008 drug and firearm case
In the
meantime, on October 14, 2010, a complaint was filed in a new case (No.
BF134130A) charging defendant with drug and firearm offenses committed on April
11, 2008. Defendant was charged with
count I, possession of methamphetamine for sale (Health & Saf. Code,
§ 11378), with the special allegation that he was personally armed with a
firearm (§ 12022, subd. (c)); and count II, possession of a firearm by a
felon (§ 12021, subd. (a)(1)). It
was further alleged that defendant had two prior convictions for possession for
sale (Health & Saf. Code, § 11370.2, subd. (c)), and served five prior
prison terms (§ 667.5, subd. (b)).
Defendant was still on bail in case
No. BF132416A, when the 2008 drug and firearm charges were filed against him.
On October 15, 2010, the day after
the drug and firearm offenses were filed in the 2008 case, defendant failed to
appear as ordered in case No. BF132416A.
The court ordered forfeiture of the bail bond, and issued a no-bail
bench warrant for defendant’s arrest.
Case No. BF134601A – Failure to appear on 10/15/10
On November
19, 2010, while defendant remained at large, a new complaint was filed against
him (case No. BF134601A) alleging count I, failure to appear on October 15,
2010, after defendant had been released on bail and ordered to appear in case
No. BF132416A.
The information further alleged an
on-bail enhancement (§ 12022.1), that defendant had been released on bail
in case No. BF132416A when he committed the offense charged in count I; and six
prior prison term enhancements (§ 667.5, subd. (b)).
The
entirety of the record suggests that the outstanding bench warrant for
defendant’s failure to appear on October 15, 2010, was not served, and
defendant remained out of custody, until February 28, 2011, when defendant was
arrested on new drug charges.
On February
28, 2011, officers executed a search warrant at a residence on Olive Drive in
Bakersfield. They discovered defendant
was living there with Amanda Ash, who appeared under the influence of
narcotics.
The officers found four plastic
bags of marijuana, with a net weight of over 28.5 grams. They found two small plastic bindles, and
several larger plastic bags, which contained methamphetamine and weighed 197
grams. There were also glass pipes and
syringes in the house.
After being
advised of the Miranda warnings,
defendant said he knew about the methamphetamine, but claimed the drugs were
placed in the house by someone else.
Defendant said that person had “fronted†the drugs, so he could sell the
drugs and later pay for them. Defendant
would not reveal the person’s name.
Defendant said Ash had nothing to do with the drugs.
Case No. BF135828A – 2011 drug case
On March 2,
2011, another complaint was filed against defendant, based on the February 28,
2011 drug case (case No. BF135828A & B).
Defendant and Ash were charged with possession of methamphetamine for
sale; possession of narcotics paraphernalia; and possession of more than 28.5
grams of marijuana.
An on-bail
enhancement was alleged as to defendant, that he committed count I, possession
for sale, while he was released on bail in case No. BF132416A (failure to
appear on April 26, 2010). It was also
alleged that defendant possessed 28.5 grams or more of methamphetamine for
sale; he had two prior convictions for transportation and possession for sale;
and four prior prison term enhancements.
On March 2, 2011, defendant
appeared in court for several cases.
This was his first appearance after the bench warrant had been issued
for his failure to appear on October 15, 2010.
Defendant was in custody.
First, defendant appeared in case
No. BF132416A, which alleged he failed to appear on April 26, 2010 in the
original felony case No. TF005315A. The
court vacated the bench warrant. The
court also set aside, reinstated, and exonerated the bail bond.
Defendant
also appeared in case No. BF134601A, which alleged he failed to appear on
October 15, 2010, in case No. BF132416A.
He pleaded not guilty and denied the on-bail enhancement.
In case No.
BF135828A, defendant pleaded not guilty to the drug charges based on the
February 28, 2011, search, and denied the special allegations. Finally, defendant appeared in case No.
BF134130A, the charges based on the 2008 drug case, and pleaded not guilty.
The court
set bail at $100,000 in each case.
Defendant did not post bail and remained in custody for the remainder of
the proceedings.
Jury Trial in Case No. BF132416A – failure to appear
On May 2,
2011, defendant’s jury trial began in case No. BF132416A, for failing to appear
on April 26, 2010, in the original case No. TF005315A. In issue I, post, we will address the evidence introduced at that trial.
On May 5,
2011, defendant was convicted of count I, failure to appear, and the jury found
the on-bail enhancement true. The court found five of the six prior prison
term allegations true.
name="_ftnref6" title="">[5]
Preliminary hearings and informations
On June 16,
2011, the court conducted preliminary
hearings in the 2008 drug case (No. BF134130A), the October 26, 2010,
failure to appear case (No. BF134601A), and the 2011 drug case (No.
BF135828A). Defendant was held to
answer.
On June 22,
2011, three separate informations were filed against defendant in these three
cases. Defendant pleaded not guilty and
denied the special allegations.
Plea in 2011 drug case
On August
9, 2011, defendant pleaded guilty in case No. BF135828, to count I, possession
of methamphetamine for sale on February 28, 2011, and admitted the on-bail
enhancement, that he committed the offense while released on bail in case
No. BF132416A.
On the same day, defendant rejected
the prosecution’s offer to plead to the 2008 drug charges (case No. BF134130A)
in exchange for dismissal of the charges in case No. BF134601A (failing to
appear on October 15, 2010).
Trial in Case No. BF134601A – Failure to appear on 10/15/10
On August
17, 2011, after a jury trial, defendant was convicted in case
No. BF134601A for failing to appear on October 15, 2010, and the jury
found the on-bail enhancement true. The
court dismissed the prior prison term enhancements.
Trial in Case No. BF134130A – 2008 drug case
On
September 6, 2011, after a jury trial, defendant was convicted in case
No. BF134130A of the 2008 drug offenses:
count I, possession of methamphetamine for sale, with an enhancement for
possession of more than 28.5 grams, and count II, possession of a firearm by a
felon. The court dismissed the prior
conviction allegations since they were identical to those already found true in
the prior case.
On
September 21, 2011, the court imposed sentences in case Nos. BF134601A,
BF132416A, and BF135828A. On September
22, 2011, defendant filed notices of appeal in those three cases (F063494).
On October
4, 2011, the court conducted a hearing to impose and correct the sentence in
all four cases, and designated the principal case as No. BF134130A (the 2008
drug offenses) and the other three cases as subordinate cases.
The court sentenced defendant to
three years eight months in case No. BF134130A, the 2008 drug and firearm
offenses.
The court imposed seven years eight
months in case No. BF132416A; two years eight months in case No. BF134601A; and
eight months in case No. BF135828A; to be served consecutively to the term
imposed in case No. BF134130A.
Defendant’s aggregate term for all
four cases was 14 years 8 months.
On November
14, 2011, defendant filed a notice of appeal in case No. BF134130A (F063901).
I.
Denial of
the motion to acquit
As
mentioned above, all of defendant’s appellate issues are based on his
conviction in case No. BF132416A, where he was charged and convicted of failing
to appear on April 26, 2010, in violation of section 1320.5, and the jury found
true the section 12022.1 enhancement for committing the offense while on bail
in case No. TF005315A.
On appeal, defendant contends the
trial court should have granted his motion for acquittal after the prosecution
rested its case (§ 1118.1) because the prosecution failed to introduce
evidence to prove the on-bail enhancement, that he was “arrested†within the
meaning of section 12022.1, on the bench warrant issued for his failure to
appear in case No. TF005315A.
The People
contend that a section 1118.1 motion for
acquittal cannot be entertained for a status-based on-bail
enhancement. In the alternative, the
People argue the court properly denied defendant’s motion to acquit because
there was substantial evidence of his arrest on the bench warrant.
A.
Sections
1320.5 and 12022.1
We begin with the charges in this
case. Defendant was charged and
convicted of failing to appear in violation of section 1320.5, with an on-bail
enhancement pursuant to section 12022.5.
Section
1320.5 defines a substantive criminal offense:
“Every person who is charged with or convicted of the commission of a
felony, who is released from custody on bail, and
in order to evade the process of the court willfully fails to appear as
required, is guilty of a felony.…
Willful failure to appear within 14 days of the date assigned for
appearance may be found to have been for the purpose of evading the process of
the court.â€
“Unlike
section 1320.5, section 12022.1 does not define a criminal offense; instead, it
identifies circumstances under which a defendant charged with a substantive
offense is subject to a sentence enhancement.â€
(People v. Walker (2002) 29
Cal.4th 577, 582 (Walker).) Section 12022.1, subdivision (b) defines the
on-bail enhancement:
“Any person arrested
for a secondary offense which was alleged to have been committed while that
person was released from custody on a
primary offense shall be subject to a penalty enhancement of an additional
two years which shall be served consecutive to any other term imposed by the
court.†(Italics added.)
For purposes of the on-bail
enhancement, a “primary offense†means “a felony offense for which a person has
been released from custody on bail or on his or her own recognizance prior to
the judgment becoming final .…â€
(§ 12022.1, subd. (a)(1).) A
“secondary offense†means “a felony offense alleged to have been committed
while the person is released from custody for a primary offense.†(§ 12022.1, subd. (a)(2).)
“The
language of section 12022.1 provides no exception to its application in the
event that the defendant’s only secondary offense is a violation of section
1320.5.†(Walker, supra, 29 Cal.4th
at p. 582.) “[T]he Legislature intended section 12022.1 to apply where … the only
felony the defendant commits while released on bail is a failure to appear in violation
of section 1320.5. [B]ecause a section
12022.1 sentence enhancement is not based on the same act or omission for which
punishment is authorized under section 1320.5, sentencing under both statutes
may be imposed without violating section 654’s bar against multiple
punishment.†(Id. at p. 580.)
As applied
to this case, the primary offense for the on-bail enhancement was the felony
charge filed against defendant in case No. TF005315A, for which he was released
on bail on April 16, 2010. Defendant was
charged in case No. BF132416A with committing the secondary offense of failing
to appear on April 26, 2010, in case No. TF005315A, with an on-bail
enhancement.
Defendant
contends the court should have granted his motion for acquittal for the on-bail
enhancement because the prosecution failed to prove that he had been arrested
for committing the secondary offense.
Defendant concedes that he was returned to custody at some point after
April 26, 2010, but argues the prosecution failed to introduce competent
evidence that he was arrested on the bench warrant issued for his failure to
appear on April 26, 2010, in case No. TF005315A.
With this
background in mind, we turn to the procedural history and evidence introduced
in this case.
B.
Procedural
Background
As set
forth above, the parties agree that in case No. TF005315A, defendant was
charged with a felony offense.
On April 16, 2010, defendant was
released on bail in case No. TF005315A.
The court ordered him to return on April 26, 2010, for a jury trial in
that case. On April 26, 2010, defendant
failed to appear. The court issued a
bench warrant for his arrest in case No. TF005315A.
As we will explain,
2010. On May 28, 2010, defendant
returned to court and appeared in case No. TF005315A.
On June 30,
2010, an information was filed in case No. BF132416A (the case at issue on
appeal), which charged defendant with count I, his failure to appear as ordered
in case No. TF005315A on April 26, 2010; with an on-bail enhancement, that
defendant had been released on bail in case No. TF005315A when he committed the
offense charged in count I.
On July 9, 2010, defendant pleaded
not guilty and denied the enhancement.
Also as set forth,
on October 15, 2010, and was not returned to custody until February 28, 2011.
C.
The
prosecution’s documentary evidence
On May 2,
2011, defendant’s jury trial finally began in case No. BF132416A, for failing
to appear on April 26, 2010, with the on-bail enhancement.
During
motions in limine, the prosecution moved for the court to take judicial notice
of certain facts from the docket in case No. TF005315A. After hearing argument, the court granted the
prosecution’s motion for judicial notice.
At trial,
the prosecution did not present any witnesses.
Instead, it moved to introduce a documentary exhibit as follows:
“THE COURT: …
Are you going to be asking the Court to take judicial notice at this time?
“[THE PROSECUTOR]: I
am, your Honor. First I would like to
“THE COURT: You
may.†(Italics added.)
The court marked the documents as
exhibit No. 1. The prosecutor moved to
introduce the exhibit into evidence, and defense counsel submitted the
matter. The court granted the prosecutor’s
motion and admitted exhibit No. 1 into evidence without any restrictions or
limitations.
Exhibit No.
1 consisted of docket entries in case No. TF005315A. The docket entries state that defendant was
charged with a violation of Health and Safety Code section 11378, possession of
methamphetamine for sale. He was in
custody from April 2009 to January 2010, when he was released on $15,000
bail. On April 16, 2010, he appeared for
a hearing while on bail, and was ordered to return on April 26, 2010.
According to the docket entries, on
April 26, 2010, defendant failed to appear, and the court issued a no-bail
bench warrant. On May 26, 2010, the
bench warrant was served and defendant was arrested. On May 28, 2010, defendant appeared in court
for the return on the bench warrant, and he was in custody.
D.
Judicial
notice
After the
court admitted Exhibit No. 1, it asked the prosecutor about the judicial notice
motion.
“THE COURT: At
this time … are you asking the Court to take judicial notice of certain facts?
“[THE PROSECUTOR]: Yes,
your Honor, of facts contained in People’s Exhibit 1.
“THE COURT: Okay. But you are asking the Court to specifically
admonish the jury with regard to certain
of those facts.
“[THE PROSECUTOR]: Yes.†(Italics added.)
The court advised the jury that it
was taking judicial notice of certain facts which the jury should accept as
true: defendant was charged with a
felony in case No. TF005315A; on April 16, 2010, defendant was released on
bail; he was ordered to return to court on April 26, 2010, for a jury trial;
defendant did not appear as ordered on April 26, 2010; a bench warrant was
issued on April 26, 2010; defendant appeared in case No. TF005315A after
the issuance of the bench warrant on May 28, 2010; and defendant did not appear
in court between April 26 and May 28, 2010, or file a motion to surrender
himself to the court.
E.
Motion
for acquittal
After the court read the judicially
noticed facts, the People rested.
Defense counsel stated that he had a motion. The court conducted an unreported sidebar
conference. Thereafter, the court said
it would later make a record of its ruling, outside the jury’s presence.
Later in the trial, outside the
jury’s presence, the court stated that defense counsel had timely made a motion
for acquittal pursuant to section 1118.1, after the People rested. The court further stated it heard and denied
the motion. The record is silent as to
whether defendant raised certain issues during the motion for acquittal, he
addressed the substantive charge of failing to appear and/or the on-bail
enhancement, or the court made any findings when it denied the motion.
F.
Defendant’s
testimony
When the
trial resumed, defendant testified and admitted that he had been released on
bail in case No. TF005315A, he was ordered to return for his jury trial on
April 26, 2010, he did not appear in court that day, and he failed to return to
court until May 28, 2010.
On
cross-examination, the prosecutor asked defendant if he returned to court
because he had been arrested. Defendant
said yes, but he could not remember the date of his arrest. The prosecutor asked defendant to review
additional documentary exhibits, including booking records. Defendant reviewed the documents and
testified that he was arrested by the Bakersfield Police Department on May 26,
2010, booked into jail that day, and he was in custody when he appeared in case
No. TF005315A on May 28, 2010. Defendant
admitted he never appeared in court or surrendered himself prior to May 28,
2010. Defendant complained that the
charges in case No. TF005315A had been dismissed and refiled:
“[DEFENDANT]: Just now they refiled the charges. These charges were dismissed and never
refiled again until they picked me up for this failure to appear. Then they refiled it.
“[THE
PROSECUTOR]: And you were picked up
on May 26, 2010. Right?
“[DEFENDANT]: Yes.
And it was refiled before I didn’t – nobody got in contact with me to
tell me that they have refiled it.
“[THE
PROSECUTOR]: However, this case,
this TF005315A case, was still active and pending trial on April 26, 2010, when
you were ordered to come back to court for jury trial. Right?
“[DEFENDANT]: It was then.
“[THE
PROSECUTOR]: And it was still
pending and active when you failed to appear for that jury trial on April 26,
2010. Right?
“[DEFENDANT]: Yes, sir.â€
Defendant was convicted of failing
to appear, and the jury found the on-bail enhancement true.
G.
Analysis
Defendant
contends the court should have granted his motion for acquittal of the on-bail
enhancement when the prosecution rested.
Defendant argues the prosecution failed to present evidence to prove
that he had been arrested on the bench warrant in case No. TF005315A, for
committing the secondary offense of failing to appear on April 26, 2010.
“An
appellate court reviews the denial of a section 1118.1
motion under the standard employed in reviewing the sufficiency of the evidence
to support a conviction. [Citation.]
‘In reviewing a challenge to the sufficiency of the evidence, we do not
determine the facts ourselves. Rather, we
“examine the whole record in the light most favorable to the judgment to
determine whether it discloses substantial evidence – evidence that is
reasonable, credible and of solid value – such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.†[Citations.]
We presume in support of the judgment the existence of every fact the
trier could reasonably deduce from the evidence. [Citation.]
[¶] The same standard of review
applies to cases in which the prosecution relies primarily on circumstantial
evidence and to special circumstance allegations. [Citation.]
“[I]f the circumstances reasonably justify the jury’s findings, the
judgment may not be reversed simply because the circumstances might also
reasonably be reconciled
finding.†[Citation.] We do not reweigh evidence or reevaluate a
witness’s credibility.’ [Citation.] Review of the denial of a section
1118.1 motion made at the close of a prosecutor’s case-in-chief focuses on the
state of the evidence as it stood at that point. [Citation.]â€
(People v. Houston (2012) 54
Cal.4th 1186, 1215.)
“ ‘The purpose of a motion
under section 1118.1 is to weed out as soon as possible those few instances in
which the prosecution fails to make even a prima facie case.’ [Citations.]
The question ‘is simply whether the prosecution has presented sufficient
evidence to present the matter to the jury for its determination.’ [Citation.]
The sufficiency of the evidence is tested at the point the motion is
made. [Citations.] The question is one of law, subject to
independent review. [Citation.]†(People
v. Stevens (2007) 41 Cal.4th 182, 200.)
We note
that defendant’s motion for acquittal was made, heard, and denied during an
off-the-record sidebar hearing. Defendant
never clarified whether his motion was based on the substantive charge of
failing to appear and/or the on-bail enhancement. However, a defendant need not articulate the
grounds for his motion for acquittal, and there is no requirement that the
motion be made in a particular form or on specific points. (See, e.g., People v. Cole (2004) 33 Cal.4th 1158, 1213; People v. Smith (1998) 64 Cal.App.4th 1458, 1468.)
On appeal,
the People assert that defendant could not make a motion for acquittal for an
on-bail enhancement, because section 1118.1 motions are not permitted for
status-based enhancements. The People
alternatively argue that section 12022.1 does not require proof of an actual
arrest on the secondary offense in order to prove the elements of an on-bail
enhancement.
We need not resolve these issues
because even assuming that the court properly considered a motion for acquittal
of the on-bail enhancement, and that section 12022.1 requires the prosecution
to prove defendant was arrested for the secondary offense, defendant’s motion
was properly denied. The court admitted
exhibit No. 1 into evidence without objection.
The exhibit consisted of the docket entries for case No. TF005315A,
the primary offense which was the basis for the secondary offense of failing to
appear and the on-bail enhancement in this case. The docket entries demonstrate that defendant
was released on bail, he was ordered to return on April 26, 2010, for his jury
trial, he failed to appear, a bench warrant was issued for his arrest, he was
arrested on that bench warrant on May 26, 2010, and he returned to court while
in custody on May 28, 2010.
Defendant concedes such facts are
contained in exhibit No. 1, but argues that the documentary exhibit was
only introduced in support of the court’s judicial notice ruling, and the court
did not judicially notice the fact of defendant’s arrest on the bench warrant
on May 26, 2010, as reflected in the docket.
As set forth above, however, the court admitted Exhibit No. 1 without
any restrictions or limitations. When
the court turned to the prosecution’s judicial notice matter, it clarified that
the prosecutor was asking the court to “to specifically admonish the jury
on the docket entries, the court did not restrict the jury’s consideration of
exhibit No. 1 to those judicially noticed facts.
Defendant next contends that the
court should have granted the motion for acquittal because the only evidence
that he was arrested on the bench warrant consisted of inadmissible hearsay in
the docket entries of exhibit No. 1.
(See, e.g., People v. Duran
(2002) 97 Cal.App.4th 1448.)
name="_ftnref8" title="">[7] While defendant objected to some of the
judicial notice issues, however, he never objected to the introduction of the
documents contained in exhibit No. 1.
His failure to object necessarily waives any possible hearsay
issues. (Evid. Code, § 353;
758, 827, fn. 33; People v. Williams
(2008) 43 Cal.4th 584, 626; Rupf v. Yan
(2000) 85 Cal.App.4th 411, 430-431.)
Defendant concedes that he
ultimately testified at trial and admitted he had been arrested for failing to
appear, but asserts that this court can only consider the evidence which had been
introduced by the prosecution at the time he moved for acquittal. The federal circuit courts have held: “[A]
criminal defendant who, after denial of a motion for judgment of acquittal at
the close of the government’s case-in-chief, proceeds with the presentation of
his own case, waives his objection to the denial. The motion can of course be renewed later in
the trial, but appellate review of denial of the later motion would take into
account all evidence introduced to that point.â€
(U.S. v. Foster (D.C. Cir.
1986) 783 F.2d 1082, 1085; United States v. Martinez (9th
Cir.1975) 514 F.2d 334, 337.) However,
the federal waiver rule has not been adopted in California. It is directly contrary to California Supreme
Court cases which hold that appellate review of a motion for acquittal must be
based on the evidence before the court at the time the motion was made. (See, e.g., People v. Cole, supra,
33 Cal.4th at p. 1213; In re
Anthony J. (2004) 117 Cal.App.4th 718, 732.) Defendant is thus correct that his trial
testimony cannot be relied upon to determine whether the trial court properly
denied his motion for acquittal.
Finally,
defendant contends that defense counsel was prejudicially ineffective for
failing to raise a hearsay objection to the docket entry that he was arrested
on the bench warrant. “To establish
bears the burden of showing, first, that counsel’s performance was deficient,
falling below an objective standard of reasonableness under prevailing
absent counsel’s error, it is reasonably probable that the verdict would have
been more favorable to him.
[Citations.]†(People v.
Hawkins (1995) 10 Cal.4th 920, 940, overruled on other grounds in People
v. Lasko (2000) 23 Cal.4th 101, 110, and People v. Blakeley (2000)
23 Cal.4th 82, 89.)
As explained above, the court may
deny a motion for acquittal based on circumstantial evidence. If the circumstances reasonably justify the
jury’s findings, the judgment may not be reversed simply because the
circumstances might also reasonably be reconciled with a contrary finding. (People
v. Houston, supra, 54 Cal.4th at
p. 1215.) At the time defendant moved
for acquittal, the prosecution’s evidence consisted of both the docket entries
in exhibit No. 1, and the judicially noticed facts. The court took judicial notice that a bench
warrant was issued on April 26, 2010, for his failure to appear; on May 28,
2010, defendant appeared in case No. TF005315A after the issuance of the bench
warrant; and defendant did not appear in court between April 26 and May 28,
2010, or file a motion to surrender himself to the court.
Based on the judicially noticed
facts, there was direct evidence that a bench warrant was issued for
defendant’s arrest for failing to appear on April 26, 2010; and that defendant
did not appear or surrender himself to the court between April 26 and May 28,
2010. More importantly, there was
circumstantial evidence from which it could be inferred that defendant only
returned to court on May 28, 2010, because he was arrested on the bench
warrant, since he did not voluntarily appear or surrender himself to the court.
We thus conclude that even if a
motion for acquittal may be brought for an on-bail enhancement, and that the
prosecution had to prove that the defendant has been “arrested†on the
secondary offense, the trial court in this case properly denied the motion for
acquittal based on the circumstantial evidence and reasonable inferences from
the judicially noticed facts that defendant did not voluntarily return to court
on May 28, 2010, because he had been arrested on the bench warrant. Defense counsel’s failure to raise hearsay
objections to the docket entries was not prejudicial.
II.
Instruction
on for the on-bail enhancement
Defendant
next contends that the court failed to instruct the jury on all the elements of
the on-bail enhancement, in violation of Apprendi. The jury received CALCRIM No. 3250 as to the
elements of the on-bail enhancement:
“If you find the defendant
guilty of the crime charged in Count one, you must then decide whether the
People have proved the additional allegation that at the time the defendant
committed the crime charged in Count one, it was while he was released from
custody pending trial in Court Case No. TF005315A.
“The People have the burden of
proving each allegation beyond a reasonable doubt. If the People have not met this burden, you
must find that the allegation has not been proved.â€
Defendant
argues this instruction was erroneous and incomplete because the jury should
have been instructed that it had to find he had been arrested for a felony, he
was released on bail or his own recognizance, and he was arrested for
committing a new felony offense.
A.
Right to
a jury trial for the on-bail enhancement
Defendant’s
argument is based on Apprendi, which
held: “Other than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.†(Apprendi, supra, 530 U.S. at p. 490.)
Defendant’s Apprendi argument is based on the premise that he had the right to
a jury trial on the truth of the section 12022.1 on-bail enhancement. In People
v. Johnson (2012) 208 Cal.App.4th 1092 [review denied], however, the Third
District recently held that a defendant is not entitled to a jury trial on the
truth of the on-bail enhancement, because section 12022.1 is an enhancement
statute which “penalizes recidivist conduct and does not relate to the
commission of either the primary or secondary offense .…†(Id.
at p. 1100.)
Johnson
reached this conclusion based on a series of California Supreme Court cases
which held that a judge, rather than a jury, determines the existence of the
aggravating circumstances of whether a defendant served a prior prison term, he
was on probation or parole when the crime was committed, or his prior
performance on probation or parole was unsatisfactory. (Johnson,
supra, 208 Cal.App.4th at p. 1099,
citing People v. Towne (2008) 44
Cal.4th 63, 70-71, 79.) The California
Supreme Court also held, consistent with Apprendi,
that the trial court may determine whether a prior conviction is a serious
felony, or whether a defendant’s prior convictions are numerous and of
increasing seriousness. (
(2006) 38 Cal.4th 682, 706; People v. Black (2007) 41 Cal.4th 799,
818-820.) Johnson further noted that the court, and not a jury, determines
the truth of a prior prison term enhancement.
(Johnson, citing,
1099, citing People v. Thomas (2001) 91 Cal.App.4th 212, 220-223.)
“The bases for the above
holdings were, in general, that the aggravating factors were all related to
‘the fact of a prior conviction’ by their recidivistic nature, rather than to
the conduct involved in the charged offense(s), and that such factors could be
proven by reliable documentation, such as court
[Citations.] [¶]
punishment based upon the defendant’s commission of another offense while on
bail for a previous offense.
[Citations.] [¶] The only difference between a defendant who
commits a felony offense while on probation or parole and a defendant who
commits a felony offense while on bail for another felony offense is the
timing. In the former circumstance, the
prior conviction (primary offense) has already occurred. The distinction is insignificant because in
the latter circumstance the defendant cannot be punished until he is convicted
of the primary offense. Of course, in
both circumstances, additional punishment requires a conviction of the second
charged offense.†(Johnson, supra, 208 Cal.App.4th at p. 1099-1100.)
Johnson
thus concluded that a defendant did not have the right to a jury trial for the
on-bail enhancement. Based on this
conclusion, defendant’s Apprendi
argument about the correctness of the jury instruction in this case would be
meritless.
B.
Even if
defendant had the right to a jury trial for the on-bail enhancement, the
alleged Apprendi error would be
harmless beyond a reasonable doubt.
is not reversible per se but is reviewed under the harmless
error
standard set forth in Chapman v. California (1967) 386 U.S. 18. (People v. Sandoval (2007) 41 Cal.4th
825, 838; People v. Sengpadychith (2001) 26 Cal.4th 316, 326-328 [Chapman
harmless error standard applies to Apprendi error in failing to instruct
on element of sentencing enhancement].)
Even when jury instructions completely omit an element of a crime, and
therefore deprive the jury of the opportunity to make a finding on that
element, a conviction may be upheld under Chapman if the record does not
contain evidence “that could rationally lead to a contrary finding†with
respect to that element. (Neder v.
United States (1999) 527 U.S. 1, 19; People v.
Flood (1998) 18 Cal.4th 470, 502-505; People
v. Davis (2005) 36 Cal.4th 510, 564.)
Any
instructional error in this case is harmless beyond a reasonable doubt. As set forth in issue I, ante, defendant testified at trial and admitted that he was
released on bail in case No. TF005315A, he was ordered to return for trial, he
failed to appear, he never surrendered himself or reappeared in court, he was
arrested on the bench warrant, and he returned to court in custody.
III.
The
on-bail enhancement must be stayed
As explained in issue I, ante, the primary offense for purpose of the on-bail enhancement
was the felony charged in case No. TF005315A.
The secondary offense was defendant’s failure to appear on April 26,
2010, in case No. TF005315A. Defendant
was charged and convicted in case No. BF132416A with committing the secondary
offense of count I, failure to appear (§ 1320.5), with the on-bail
enhancement. In case No. BF132416A,
defendant was sentenced to an aggregate term of seven years eight months, based
on eight months (one-third the midterm) for count I, failure to appear; a
consecutive term of two years for the on-bail enhancement; and five consecutive
one-year terms for the prior prison term enhancements.
Defendant
contends, and the People concede, that the two-year consecutive term imposed
for the on-bail enhancement must be stayed because it is unclear from the record
whether defendant had been tried and convicted for committing the substantive
charges in the primary offense in case No. TF005315A, when he was sentenced in
case No. BF132416A for the on-bail enhancement for committing the
secondary offense of failing to appear in that case on April 26, 2010.
Section 12022.1, the on-bail enhancement, “recognizes that in some
cases, the defendant may not have been convicted of the primary offense at the
time the section 12022.1 allegation is tried, because the secondary offense may
be tried first.†(People v. Smith (2006) 142 Cal.App.4th 923, 935.) In such instances, “the imposition of the
[on-bail] enhancement shall be stayed pending imposition of the sentence for
the primary offense....†(§ 12022.1,
subd. (d).) “Our Supreme Court has
unequivocally stated that a conviction for the criminal charge on the primary
offense is an essential prerequisite to the imposition of the ‘on bail’
enhancement. Under section 12022.1, the
‘requirement of “conviction†for the earlier “bailed†offense appears
principally intended to establish with judicial certainty that the charges
leading to release on bail or O.R. were valid.... In other words, the Legislature has declined
to apply the bail/O.R. enhancement to an offense unless a court has also
sustained the charge on which the offender was released when he committed
it....’ [Citation.]†(In re
Ramey (1999) 70 Cal.App.4th 508, 512.)
As
explained above, the parties agree defendant was charged with a felony offense
in case No. TF005315A. In addition,
there is overwhelming evidence to support his conviction in case No. BF132416A
for failing to appear on April 26, 2010, and that he was on bail when he failed
to appear and was arrested on the bench warrant. Given defendant’s numerous failures to
appear, however, the four felony cases were not tried in the order in which the
offenses were committed or the cases were filed. As explained above, defendant was tried and
convicted of committing the secondary offense before the primary offense.
In addition, the precise nature and
disposition of the felony charge in case No. TF005315A (the primary
offense) is unclear from the instant record.
The record implies that he might have been charged with possession for
sale based on the 2008 drug offenses.
However, on July 9, 2010, the felony charge(s) in case No. TF005315A was
consolidated into case No. BF123010A. On
July 26, 2010, the felony charge(s) in case No. BF123010A were dismissed. On October 14, 2010, when defendant was on
bail, a complaint was filed in case No. BF134130A, charging defendant with drug
and firearm offenses committed in 2008.
While
defendant was eventually convicted of the 2008 drug offenses in case
No. BF134130A, it is not clear from the record before this court whether those
were the same offenses originally charged in case No. TF005315A, the primary
offense for purposes of the on-bail enhancement in this case. When the court conducted the sentencing
hearing for all four cases, however, it imposed a consecutive two-year term for
the on-bail enhancement in the secondary offense of case No. BF132416A, even
though the probation report addressed the possible problem that defendant had
not yet been convicted of the primary offense.
Given the procedural history of
this case, the parties agree that the two-year term imposed for the on-bail
enhancement in case No. BF132416A (based on defendant’s failure to appear in
case No. TF005315A) must be stayed pursuant to section 12022.1, subdivision
(d), pending conviction of the charges originally alleged in case
No. TF005315A, or further clarification of the record. (See, e.g., People v. Johnson, supra,
208 Cal.App.4th at pp. 1098-1099.)
DISPOSITION
The two-year term imposed for the
on-bail enhancement in case No. BF132416A (based on defendant’s failure to
appear in case No. TF005315A) is stayed pursuant to section 12022.1,
subdivision (d), pending conviction of the charges originally alleged in case
No. TF005315A, or further clarification of the record. If defendant has already been convicted of
the charges in that case, or is subsequently convicted, the court may then lift
the stay for that two-year term. The
matter is remanded for further appropriate proceedings. In all other respects, the judgment is
affirmed.
_____________________
Poochigian,
J.
WE CONCUR:
______________________
Cornell, Acting P.J.
______________________
Gomes, J.
sentencing hearing on September 21, 2011.
Judge Brownlee presided over the resentencing hearing on October 4,
2011.
otherwise indicated, all further case references are to cases filed in the
Superior Court of Kern County.
