P. v. Smith











Filed 7/16/12 P. v.
Smith CA3

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>NOT TO BE PUBLISHED

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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opinion has not been certified for publication or ordered published for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.

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IN THE COURT OF APPEAL OF THE STATE OF >CALIFORNIA>

THIRD APPELLATE DISTRICT

(Shasta)

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THE PEOPLE, Plaintiff and Respondent, v. BRANDON SCOTT SMITH, Defendant and Appellant.

C068811 (Super. Ct. Nos. 08F8573, 10F5720, 10F8109)

In this appeal, defendant Brandon
Scott Smith asks us to dismiss a two-year sentence enhancement that was imposed
upon him for committing a felony while out on bail. (Pen. Code, § 12022.1.)href="#_ftn1" name="_ftnref1" title="">[1] We agree with the parties that, because
defendant was not ultimately convicted of a felony for the original crime, the
sentence enhancement was improperly imposed in the subsequent case and must be
reversed.

FACTUAL BACKGROUND

In case
No. 08F8573, defendant was charged with two counts of href="http://www.mcmillanlaw.com/">possessing controlled substances
(cocaine and methadone); it was also alleged he committed the crimes while on
bail in case No. 07F9585. Defendant
pleaded guilty to possessing cocaine, and admitted he was on bail when the
offense was committed. Entry of judgment
was deferred. The plea further provided
that imposition of the two-year on-bail enhancement “shall be dependent upon
the resolution of [case No.] 07F9585” and, should defendant be “acquitted on
all felony counts in [case No.] 07F9585, then by law that [section] 12022.1
would be dismissed.”

Thereafter,
defendant was convicted in case No. 07F9585 of a single theft misdemeanor.

Judgment was
subsequently entered in case No. 08F8573, at the same time as defendant
pleaded guilty in case No. 10F5720 to possessing methamphetamine;
defendant received probation in both cases.


When,
ultimately, defendant pleaded guilty to two counts of first degree residential
burglary and receiving stolen property
in case No. 10F8109, he also admitted violating his probation in case
Nos. 08F8573 and 10F5720, in exchange for a maximum sentence of nine years
in state prison. The court denied defendant’s request at
sentencing that it strike the on-bail enhancement, and sentenced defendant to a
total of nine years; one component of that sentence was the two-year
consecutive on-bail enhancement admitted in case No. 08F8573.

DISCUSSION

Defendant argues
the on-bail enhancement must be
stricken because he was not convicted of a felony offense for the “primary offense,”
i.e., the offense charged in case No. 07F9585. He also argues that the terms of his plea
agreement in case No. 08F8573 required the trial court, under these
circumstances, to dismiss the enhancement.
Both assertions are correct.

The statutory scheme
establishing the on-bail enhancement employs special terminology: A “primary offense” means a felony offense
for which the offender is on bail or released on his own recognizance; a
“secondary offense” refers to the felony committed while the defendant is on
bail for the primary offense.
(§ 12022.1, subd. (a)(1), (2).)
If the person “is convicted of a
felony for the primary offense . . . and is convicted of a felony
for the secondary offense,” the sentence for the secondary offense is to run
consecutive to the primary sentence.
(§ 12022.1, subd. (e), italics added; In re Ramey (1999) 70 Cal.App.4th 508, 512.) The statute contemplates occasions, as here,
where the defendant may be convicted of the secondary crime prior to trial on
the primary offense; in such instances, “the imposition of the 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 felony conviction for the href="http://www.mcmillanlaw.com/">criminal charge on the primary offense
is an essential prerequisite to the imposition of the “‘on bail’
enhancement.” (In re Ramey, supra,
70 Cal.App.4th at p. 512, citing In
re Jovan B. (1993) 6 Cal.4th 801, 814; People v. McClanahan (1992) 3 Cal.4th 860, 869-870; see also >People v. Vega (1990)
224 Cal.App.3d 506, 520 [section 12022.1 “has no life until and unless the
primary offense is a final felony conviction”].)

When, as here,
the accused is ultimately convicted in the primary offense case of a
misdemeanor only, “[l]ike the Cheshire Cat, the felony count disappeared from
sight, leaving nothing behind but a mischievous grin.” (In re
Ramey, supra, 70 Cal.App.4th at p. 512.) Here, a term of defendant’s plea bargain in
case No. 08F8573, in which the on-bail enhancement was alleged, provided
that the on-bail enhancement would be dismissed if defendant were not convicted
of a felony in case No. 07F9585. He
was not; the enhancement should have been dismissed.

DISPOSITION

The portion of
the judgment imposing a two-year consecutive period of imprisonment pursuant to
section 12022.1 is reversed, and defendant’s sentence shall be modified
accordingly. The judgment is affirmed in
all other respects. The trial court is
directed to prepare an amended abstract of judgment that accurately reflects
defendant’s modified sentence and to forward a certified copy of the amended
abstract to the Department of Corrections
and Rehabilitation.







BUTZ , J.







We concur:







BLEASE , Acting P. J.








NICHOLSON , J.