Opinion
F062495
01-16-2013
THE PEOPLE, Plaintiff and Respondent, v. BOBBI KAY BAKER, Defendant and Appellant.
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.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. BF125635A)
OPINION
APPEAL from a judgment of the Superior Court of 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.
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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.) 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 on-bail enhancements, but otherwise affirm.
Unless otherwise indicated, all further statutory references are to the Penal Code.
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.
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 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 Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
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Gomes, Acting P.J.
WE CONCUR: ________________
Poochigian, J.
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Franson, J.