>P.
v. Baker

















Filed
1/16/13 P. v. Baker 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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. BOBBI KAY BAKER, Defendant and Appellant.

F062495 (Super. Ct. No. BF125635A) >OPINION

APPEAL
from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Kern County. Michael B. Lewis, Judge.

The
Law Office of Gregory H. Mitts and Gregory H. Mitts for Defendant and
Appellant.

Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri
and David A. Lowe, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Defendant
Bobbi Baker appeals her sentence, arguing that the trial court erred by
imposing three consecutive enhancements for committing offenses while she was
released from custody on bail. (Pen.
Code, § 12022.1.)href="#_ftn1"
name="_ftnref1" title="">^[1] Baker contends that only one
on-bail enhancement was permissible, and two of the enhancements must be
stricken. The People argue that two of
the enhancements were proper, but concede that one enhancement must be
stricken. Baker also contends that her
attorney had a conflict of interest because he represented Baker and a
co-defendant at the same time. We will
order the trial court to amend the abstract of judgment to strike one of the href="http://www.mcmillanlaw.com/">on-bail enhancements, but otherwise
affirm.

FACTUAL AND PROCEDURAL HISTORIES

Baker
was arrested and released from custody on bail four times. A criminal complaint was filed for each
arrest. We briefly summarize the four
cases.

First,
Baker was arrested for methamphetamine-related offenses on November 16, 2008, >People v. Baker, et al., Super. Ct. Kern
County, 2008, No. BF 125635A (first case), and released on bail. In this case, Baker had a codefendant, Billy
Largent.

Second,
Baker was arrested for drug-related offenses and possession of a billy club,
all of which were alleged to have occurred on February 7, 2009, >People v. Baker, Super. Ct. Kern County,
2009, No. BF 127072A (second case). In
the complaint for this case, the Kern County district attorney alleged on-bail
enhancements, alleging that Baker was on bail for the first case at the time
she committed the new offenses. Baker
was released from custody on bail.

Third,
Baker was arrested for drug-related offenses that occurred on March 14, 2009, >People v. Baker, Super. Ct. Kern County,
2009, No. BF 127263A (third case). In
the complaint filed in the third case, two on-bail enhancements were alleged
for each felony offense; that is, it was alleged that Baker was on bail in the
first and second cases at the time she committed the new offenses. Baker was released from custody on bail.

Fourth,
Baker was arrested for drug-related
offenses that occurred on May 23, 2009, People
v. Baker, Super. Ct. Kern County, 2009, No. BF 128096A (fourth case). In the fourth case, each felony offense
included three on-bail enhancements, in which it was alleged that Baker was on
bail in the first, second, and third cases at the time she committed the new
offenses. Again, Baker was released from
custody on bail.

On
August 5, 2009, the Kern County district attorney filed a 28-count information
against Baker and Largent, under the first case No., BF 125635A & B, adding
the allegations against Baker from the second through fourth cases, as well as
additional allegations against Largent.
Counts 1 and 2 related to offenses Baker allegedly committed on November
16, 2008 and counts 3 through 8 related to Largent, only. Counts 9 through 20 related to offenses that
occurred on February 7, 2009, and an on-bail enhancement was alleged for each
of counts 9 through 18. (Counts 19 and
20 were misdemeanors, and the on-bail sentencing enhancement only applies to
felony offenses committed while on bail.
(§ 12022.1.)) Counts 21 through
26 related to offenses that occurred on March 14, 2009, and two on-bail
enhancements were alleged for counts 21 through 23. (Counts 24 through 26 were
misdemeanors.) Counts 27 and 28 were
related to offenses that occurred on May 23, 2009 and included three on-bail
enhancements.

On
October 4, 2010, the parties reached a plea
agreement. Baker entered a plea of
nolo contendere to counts, 2, 10, and 21, three counts of possession of a
controlled substance for sale in violation of Health and Safety Code section
§ 11378. The count 2 offense
occurred on November 16, 2008 (first case); the count 10 offense occurred on
February 7, 2009, while Baker was on bail in the first case; the count 21
offense occurred on March 14, while Baker was on bail in the first and second
cases. Baker admitted the on-bail
enhancement for count 10 and two on-bail enhancements for count 21. The remaining counts were dismissed, and the
maximum punishment was set at nine years and four months.

Subsequently,
at Baker’s request, the court relieved attorney Tom Stanley as Baker’s attorney
of record and substituted Karissa Adame as her attorney of record. Adame filed a motion to withdraw the plea
agreement on Baker’s behalf. The motion
stated that Baker informed Stanley that she wished to withdraw her plea and
admission shortly after entering the plea agreement, and that Stanley was
suspended from practice of law from November 1, 2010 until March 2011. Stanley represented both Baker and Largent in
their criminal cases, and Baker argued that she had not been properly advised
of her right to conflict-free counsel and she had not properly waived this
right.

On
March 22, 2011, the trial court denied the motion to withdraw the plea
agreement. The court stated that it
accepted that there was a conflict of interest in Stanley representing Baker
and Largent, but “there has been no demonstrable basis of adverse effect.” The court proceeded to sentencing.

Baker
was sentenced to the middle term of two years for count 2. The court imposed a term of eight months,
one-third of the middle term, for count 10, to be served consecutively, and
added an on-bail enhancement of two years pursuant to section 12022.1. The court imposed another term of eight
months, again one-third of the middle term, for count 21, to be served
consecutively, and added two on-bail enhancements of two years each. The total time to be served was nine years
and four months.

Baker
filed a motion to reconsider her motion to
withdraw her plea, which was denied.


name=I616CC3A0EFE611E1973DF0F2F6665B8E>DISCUSSION

>On-bail Enhancement

Section
12022.1 provides, in pertinent part:
“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.” (§ 12022.1, subd. (b).) A “primary offense” is defined as “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.” (Id.,
subd. (a)(1).) A “secondary offense” is
defined “a felony offense alleged to have been committed while the person is
released from custody for a primary offense.”
(Id., subd. (a)(1).)

Initially,
we observe that our Supreme Court has recognized “at least two types of
sentence enhancements: (1) those which go to the nature of the offender;
and (2) those which go to the nature of the offense.” (People
v. Coronado (1995) 12 Cal.4th 145, 156.)
The second type, enhancements that arise from the circumstances of the
crime, enhance each count. On the other
hand, enhancements of the first type, such as those for prior convictions, are
not related to the particular counts, and “since they are related to the
offender, are added only once as a step in arriving at the aggregate
sentence.” (People v. Tassell (1984) 36 Cal.3d 77, 90, overruled on other
grounds by People v. Ewoldt (1994) 7
Cal.4th 380, 398-401.)

In
the present case, Baker contends that the on-bail enhancement goes to the
nature of the offender rather than the nature of the offense, and, as a
consequence, may only be imposed once in a case. The People disagree, arguing that when a
defendant is on bail for two different primary offenses and commits a secondary
offense, two enhancements apply.

Baker
relies on People v. McNeely (1994) 28
Cal.App.4th 739 (McNeely). In McNeely,
the defendant entered a guilty plea to eight residential burglaries. While on bail pending sentencing, he
committed two more burglaries, to which he also pleaded guilty. The court imposed two concurrent on-bail
enhancements, one for each burglary committed while on bail. On appeal, the defendant argued that only one
on-bail enhancement could be imposed, and the appellate court agreed. (Id.
at p. 742.) The McNeely court also observed, “When a defendant commits a crime
while on bail, he violates the special custodial trust.” (Id.
at p. 743.) However, the court concluded
that the on-bail enhancement goes to the nature of the offender, not the nature
of the crime, and therefore only one enhancement could be imposed. The McNeely
court modified the judgment to strike the second on-bail enhancement. (Ibid.)

Other
courts have similarly concluded that, when a defendant commits multiple
secondary offenses while released from custody on a primary offense, only one
on-bail enhancement applies. (>People v. Augborne (2002) 104
Cal.App.4th 362, 377; People v. Mackabee
(1989) 214 Cal.App.3d 1250, 1262 (Mackabee);
People v. Nguyen (1988) 204
Cal.App.3d 181, 195-196 (Nguyen).)

The
result is different, however, when a defendant commits secondary offenses after
having been released from custody on more than one occasion for different
primary offenses.

The
People rely on People v. Warinner
(1988) 200 Cal.App.3d 1352, 1354 (Warinner),
in which the defendant had been released on bail in two different cases at the
time he committed a burglary. The trial
court imposed two on-bail enhancements, one for each of the cases in which he
was released on bail. The defendant
argued that only one enhancement could be imposed, but the appellate court
disagreed. (Ibid.) The court explained
that the legislative intent of section 12022.1 was to punish recidivists with
additional penalties; in this case, “[t]he increased penalties here are due to
[the defendant’s] status as a repeat offender and arise as an incident
of name="citeas((Cite_as:_200_Cal.App.3d_1352,_*1">the subsequent
offense.” (Id. at p. 1356.) The court
concluded that the defendant’s sentence could be enhanced “for each pending
case from which he was released from custody.”
(Ibid.)

In Mackabee, supra, 214 Cal.App.3d 1250, the defendant was convicted
of four separate felony offenses committed on four different dates over a
three-month period. (>Id. at p. 1253.) The trial court imposed six on-bail
enhancements, believing the defendant had been released from custody on the
first felony when he committed the second felony (one enhancement), he had been
released from custody on the first and second felonies when he committed the
third felony (two enhancements), and he had been released from custody on the
first, second, and third felonies when he committed the fourth felony (three
enhancements). (Id. at p. 1259.) On appeal,
the defendant argued, first, that the enhancement for commission of the fourth
felony while released from custody on the third felony was not proper, as he
had not yet been arrested for the third felony at the time he committed the
fourth felony; the People conceded that point.
(Id. at pp. 1259-1260.) In other words, the defendant committed the
third and fourth felonies while released from custody on the first and second
felonies only, and the trial court was mistaken in believing that the defendant
had been taken into custody between the commission of the third and fourth
felonies.

More relevant to our case, the
defendant next argued that, of the remaining on-bail enhancements, “the trial
court should have imposed at most two: one for his release from custody on the
first felony, and one for his release from custody on the second felony.” The appellate court agreed. (Mackabee,
supra, 214 Cal.App.3d at p.
1260.) Relying on Warinner, supra, 200
Cal.App.3d 1352, the court concluded that two on-bail enhancements were
allowed, “one for each of the two primary offenses.” (Mackabee,
supra, 214 Cal.App.3d at p.
1261.) The court also concluded that
each primary offense could support only one on-bail enhancement. (Id. at
p. 1262, citing Nguyen, >supra, 204 Cal.App.3d 181.) The Mackabee
court therefore struck four of the six enhancements imposed by the trial
court. (Id. at p. 1262.)

In Mackabee, the two primary offenses were the first felony and the
second felony. For each of these
felonies, the defendant was arrested and released on bail, and then he
committed another felony. Likewise in
Baker’s case, there were two primary offenses, count 2 and count 10. Baker was released from custody on bail for
the primary felony of count 2 when she committed the secondary offenses of
counts 10 and 21. She was released from
custody on bail for the primary felony of count 10 when she committed the
secondary offense of count 21. Consequently,
two on-bail enhancements are permissible.
Because each primary offense can support only one enhancement, >only two on-bail enhancements are
permissible. (Mackabee, supra, 214
Cal.App.3d at p. 1262.) The judgment
will be modified to strike the second on-bail enhancement imposed in count
21.

>Attorney’s
Potential Conflict of Interest

A
criminal defendant’s constitutional right
to effective assistance of counsel includes “‘a correlative right to representation
that is free from conflicts of interest.’”
(People v. Bonin (1989) 47
Cal.3d 808, 834 (Bonin), quoting >Wood v. Georgia (1981) 450 U.S.
261.) “[C]onflicts may arise in
circumstances in which one attorney represents more than one defendant in the
same proceeding. [Citations.] In such cases there is at least the
possibility that ‘the interests of the defendants may diverge at some point so
as to place the attorney under inconsistent duties’ [citation] and thereby
undermine his loyalty to, or efforts on behalf of, one or all.” (Id.
at p. 835.)

“When
the trial court knows, or reasonably should know, of the possibility of a
conflict of interest on the part of defense counsel, it is required to make
inquiry into the matter.” (>Bonin, supra, 47 Cal.3d at p. 836.)
“The trial court is obligated not merely to inquire but also to act in
response to what its inquiry discovers.
[Citation.] In fulfilling its
obligation, it may, of course, make arrangements for representation by
conflict-free counsel. [Citation.] Conversely, it may decline to take any action
at all if it determines that the risk of a conflict is too remote. [Citation.]
In discharging its duty, it must act ‘“... with a caution increasing in
degree as the offenses dealt with increase in gravity.”’” (Id.
at pp. 836-837.) A defendant may waive
her right to conflict-free assistance of counsel, but such a waiver must be a
knowing, intelligent act done with sufficient awareness of the relevant
circumstances and likely consequences. (>Id. at p. 837.)

In
the present case, Baker contends that her attorney Stanley had a conflict of
interest that inured to her prejudice.
The People do not dispute the fact that for a period of the proceedings,
Stanley may have had a conflict of interest because he represented Baker in
three cases and Largent in a fourth case, in which she was also charged. The People do not claim that Baker knowingly
and intelligently waived her right to conflict-free counsel, either. Instead, they argue that Baker has failed to
show that the potential conflict adversely affected her attorney’s
performance. (Bonin, supra,
47 Cal.3d at p. 837 [“To obtain reversal for Wood [v. Georgia, >supra, 450 U.S. 271] error, . . . . [the
defendant] must show that an actual conflict of interest existed and that that
conflict adversely affected counsel’s performance.”].) We agree.

Baker’s
complete argument is as follows:



The situation at hand is that trial counsel for Appellant herein
advised Appellant to enter into a plea bargain that included an admission of
two (2) ‘on bail’ enhancements which added four (4) years to her sentence,
which enhancements are not authorized under the law. Those enhancements constitute almost fifty
per cent (50 %) of the sentence from which Appellant seeks relief. Whether this substandard representation of
Appellant was due to his conflict of interest in this case as discussed in >Bonin . . . or due to a more generic,
garden variety type of ineffectiveness as contemplated in Strickland v. Washington 466 U.S. 668 (1984)[,] trial counsel’s
performance in this matter was constitutionally deficient and that deficiency
inured to the prejudice of Appellant.
Accordingly, the judgment in this matter must be reversed in its
entirety.”

Baker’s
argument is insufficient. Stanley
apparently did not realize that each primary offense and release on bail could
result in at most one on-bail enhancement (and the trial court was not aware of
this either). As the People argue,
however, Baker points to nothing about the conflict
that affected Stanley’s performance or his advice regarding the plea.

To
the extent Stanley’s mistaken understanding of the on-bail enhancement amounts
to deficient representation, Baker has not shown there is a reasonable
probability that, absent Stanley’s deficiency, she would have received a better
result in the proceeding. (>Strickland v. Washington, >supra, 466 U.S. at p. 694.) To the contrary, Baker agreed to enter a plea
with a maximum sentence of nine years and four months. Because of Stanley’s mistake, her sentence
will be reduced by two years.

DISPOSITION

The matter is
remanded with instructions to the trial court to amend the abstract of judgment
to strike the second on-bail enhancement imposed in count 21 and to send a
certified copy of the amended abstract of judgment to the California href="http://www.mcmillanlaw.com/">Department of Corrections and
Rehabilitation. In all other
respects, the judgment is affirmed.





_____________________

Gomes,
Acting P.J.

WE CONCUR:





_____________________

Poochigian, J.





_____________________

Franson, J.